WHY IS THE DEFENDANT TRYING TO DISMISS MY CASE? QUEENS CAR ACCIDENT LAWYER EXPLAINS
Jul 22, 2020 | Car Accidents ||
UNDERSTANDING MOTION PRACTICE IN NEW YORK: WHY IS THE DEFENDANT TRYING TO DISMISS MY CASE EXPLAINED BY OUR QUEENS CAR ACCIDENT LAWYER
There are many components to a motor vehicle accident case in New York. This includes the pleading stage which is when the initial documents known as the summons and complaint (bringing the defendant to court and setting forth the allegations of the claim) and the answer (the defendant’s response to the allegations of the claim). The parties will also begin to exchange disclosure, which is the documentary evidence such as medical records or accidents reports. Defendants always request a bill of particulars, which is an amplification of the allegations in the complaint by explaining the damages, liability, and claims. Usually after that is oral testimony known as a deposition or examination before trial. Once this disclosure is done, motion practice is common.
Many clients who have a Queens car accident case are usually surprised that the motion practice which occurs is usually a motion to dismiss or for summary judgment. Victims of serious New York motor vehicle accidents common ask why is the defendant trying to dismiss my case, especially in some cases which are very clear cut. Our Queens car accident lawyers at Cohen and Cohen Law Group, P.C. explain why some defendants move to dismiss or more for summary judgment and how our law firm fights back.
WHAT IS A MOTION?
A motion is formally known as an application for an order under the Civil Practice Law and Rules or CPLR. This is when one party requests the judge to take an action by issuing an order. A motion is the most common way to do this, in fact it is really one of the only ways outside of a conference order or order to show cause. A motion must be on notice to the other side, meaning that it is sent to the court and the other attorneys in the case.
WHAT IS A MOTION TO DISMISS OR A MOTION FOR SUMMARY JUDGMENT?
Both of these types of motions are motions for accelerated judgment. This means that a party wants the court to make a decision to end the case without a trial. There are two mains types of motions for accelerated judgment. These are motions to dismiss or a motion for summary judgment.
A motion to dismiss is a motion that is premised on a limited set of facts. This is a type of motion which relates to something procedural or something that is known as an “affirmative defense,” or a claim that excuses performance. A motion to dismiss generally must be made before an answer, or another time period set under New York law. There are limited other exceptions when a motion to dismiss may be filed, usually after a claims updated or interposed. If a motion to dismiss is untimely, a court may completely deny it without reviewing same.
A motion for summary judgment is a very different type of motion. It is a motion that is based on the facts and law of the case. A motion for summary judgment asks the court to dismiss a case because, on the law, there are not facts or issues of credibility in contention and the law affirmatively says that one side wins over the other. Said differently, both parties either agree on the facts or there are no issues of material facts which could change the case. If the court finds the facts to all be true and the same, a court would only have to review the law and make a decision what happens. If a court does that, a party seeking summary judgment argues that it would win. In defense, another party would have to raise a question of fact or credibility to defeat the motion.
WHY IS A DEFENDANT IN A QUEENS CAR ACCIDENT CASE TRYING TO DISMISS MY CASE
There are many different reasons why a defendant is trying to dismiss a car accident case in New York. The two most common reasons are liability or serious injury. Liability means that the defendant is not liable for the accident, meaning that the defendant has not legal responsibility for what happened. This could be due to a statutory violation by the victim or another party.
The second and most common ground to dismiss a case in New York is for “serious injury.” Under New York insurance law, a victim of a motor vehicle accident must suffer a “serious” injury and not one that is mild or moderate. There is a list of enumerated serious injuries, most commonly a fracture or out of work for 90 out of the first 180 days of an accident.
But when it comes to neck and back injuries, torn tendons or ligaments in the knee or shoulder, or some other types of soft-tissue injuries, there are categories which could apply for permanent or temporary substantial limitations. These are very common types of “serious injuries” under New York insurance law, but there is no real statutory definition. This means that a party will have to argue how their injuries fit into the statutory based on common law, or judge-made law. This can be very complicated and is usually subject to a motion to dismiss because there is a lot of interpretation. This is by far the most common grounds for a motion in a Queens car accident.
WHERE YOU INJURED IN A SERIOUS OR CATASTROPHIC QUEENS CAR ACCIDENT? OUR NYC PERSONAL INJURY LAWYERS AT COHEN AND COHEN CAN HELP
Here at Cohen and Cohen Law Group, P.C., our experienced NYC personal injury lawyers work hard to fight back to protect the rights of victims injured by the negligence of another person, business, or government entity. When a defendant makes a motion to dismiss your case, we have the experience, skill, and knowledge necessary to fight back against a negligent party. We may hire a medical expert to help prove your damages, or work with your treating physicians to defend your claim. When a defendant is moving on liability, we may hire some of the leading experts in the area to help establish liability and prove the negligence of a defendant.
Learn how our Queens car accident lawyers at Cohen and Cohen Law Group, P.C. can help defend your case by calling for a FREE consultation by dialing (718) 275-7779 for a free case evaluation or use our convenient and easy-to-use contact us box available here to get started today with our law firm.