When Do You File a Lawsuit in New York?

People are often motivated by emotions to file a lawsuit. They may believe they have been grievously wronged and want to prove it to the person or entity that has wronged them. They may want revenge. Or they may be motivated by high-minded thoughts of righting a social wrong, not only for themselves but for others as well or even for society as a whole.

People have a multitude of reasons to file a civil lawsuit. Often, the goal is simply to recover money to compensate for economic harm that another person’s wrong has inflicted on them. Another person may have breached a contract, causing a business loss, damaged a person’s property, or inflicted physical injury through their negligence.

In whatever way a person has suffered harm or injury, they must decide whether to file a lawsuit on the basis of reason and after careful analysis of the law and how it is likely to apply to the facts of their particular situation.

Certain facts must be weighed in every potential case, and they are what it costs in time, money and effort to prosecute a lawsuit. After all, the lawsuit process may hold the promise of bestowing justice on the parties in the end, but it can be expensive in terms of time, money and effort. So it is wise to look carefully at all of the pros and cons of initiating a lawsuit before proceeding.

Of course, a lawyer consultation in New York would help a person to carefully weigh the merits of their case as well as certain procedural considerations.

Do You Have a Viable Lawsuit Under New York Law?

A careful analysis of whether an individual or entity has a viable lawsuit in New York would include consideration of the following:

• Elements of a Cause of Action: What the elements of potential causes of action are, for example, in a possible case of negligence, whether the defendant, the person to be sued, owed a duty of care to the plaintiff, the person who will file the complaint, whether the defendant acted so as to breach the duty of care, whether the breach was the direct cause of harm to the plaintiff and whether the harm is of a type that can be compensated.
• Availability of Defenses or Immunity: Whether the person or entity to be sued would have a legally recognized defense to the claim or even legal immunity, for example, whether the plaintiff was also negligent to some degree in causing their harm, which could lower or even negate the defendant’s degree of responsibility
• Significant Economic Harm: Whether the harm the plaintiff suffered is significant enough in financial value to warrant the time, expense and effort of a lawsuit
• Small Claims Alternative: Whether the case might be brought in a small claims court where the plaintiff could represent themselves and prosecute the lawsuit at a much lower cost without an attorney
• Necessary Evidence: What evidence is available to prove each element of the case and is the evidence strong
• Available Evidence: Whether the evidence can be obtained by the plaintiff for use at trial
• Admissible Evidence: Whether the evidence would be admissible in a trial
• Available Witnesses: Whether any witnesses are available and able to provide statements and possibly testify at a trial
• Counterclaims: Whether the defendant has a counterclaim that they are likely to file and if the plaintiff can defend against it
• Financial Resources of the Defendant: Whether the defendant would be able to pay any award of money damages that the plaintiff would win in a trial
• Statute of Limitations: Whether the statute of limitations has expired or would still allow any of the possible causes of action
• Where to File: In which court, federal or New York state court, it would be best to file the lawsuit.

The issue of which court is the right one in which to file a lawsuit is sometimes straightforward and sometimes complex. It can depend on whether the lawsuit involves real property, in which case it should be filed in a state court in the county in which the property is located.

It also depends on the residence of the defendant or, if the defendant is a business, where it does business. Another issue would be which law applies to the case, e.g., New York state law or federal law. Another set of factors must be considered in some cases in deciding where to prosecute a lawsuit.

How Long Do You Have To Sue Someone in New York?

The amount of time a person has to file a lawsuit is set by the statute of limitations law in New York. The statute of limitations specifies a number of years that a person has after an event to file a lawsuit. The statute of limitations is not the same in all cases. When the window of opportunity to sue closes depends on the nature of the case.

For example, the statute of limitations in New York for breach of both express and implied contracts is 6 years. If there is no statute of limitations provided in law for a certain cause of action, the default statute of limitations is 6 years.

An action to recover compensation for damage to property is 3 years. The statute for an action for personal injury is 3 years. An action for malpractice that is not medical, dental or podiatric malpractice practice is 3 years. So an action against an attorney for legal malpractice would be 3 years. The statute of limitations for medical, dental or podiatric malpractice is 2 years and 6 months.

Just to make the situation even more complicated, there are exceptions and limitations to certain statutes of limitations. Then, there can be a question as to when the statute of limitations begins to toll or run. This is why a person might want to consult a lawyer in New York about how to file a lawsuit.

What Is an Impending Lawsuit in New York?

An impending lawsuit would be a lawsuit that some person or entity is thinking of or planning to initiate. A party and their lawyer may take steps in the course of analyzing a potential lawsuit or preparing to file a lawsuit. These actions might be public, so others know about their planning. This may lead others to discuss the lawsuit as “impending.”

Are There Alternatives To Filing a Lawsuit in New York?

Almost no one would file a lawsuit before first communicating with the person or entity they plan to sue to discuss their dispute and find out if a settlement can be reached without going to court. It is standard practice for a lawyer to write a demand letter to the potential defendant in a lawsuit to be filed for their client.

In the letter, the lawyer would explain the reasons for which the lawyer considers the defendant liable for providing a remedy to the lawyer’s client, often the payment of damages. The lawyer would justify the demand and attempt to persuade the defendant that if a lawsuit is initiated, the defendant would be found liable and should avoid the tribulations of a lawsuit by paying the amount demanded in the letter.

A defendant may flatly refuse to provide any remedy to the plaintiff in response to a demand letter. However, in many cases, negotiations may follow. A plaintiff may have to file a lawsuit, but settlement negotiations are likely to continue as long as the case is active. Most cases are settled before a trial takes place. Some are even settled during a trial.

Other options are alternative dispute resolution processes. Many disputes involve contracts in which the parties have agreed to refer any disputes to arbitration or mediation. If a person who wants to sue learns that they have agreed to alternative dispute resolution, such as arbitration, they might try to avoid it. However, they are likely to be bound by their agreement. In that case, they may find they cannot file a lawsuit but must participate in an alternative process.

Do I Need a New York Lawyer?

If you want to know whether you have a viable lawsuit and how to proceed, you want to talk to a lawyer in New York. Your lawyer can analyze the facts of your situation and identify the applicable law that might give you a viable claim.

Your lawyer would know how to assess whether any potential defendants would be able to pay an award of damages or if they have insurance that would cover it. Most importantly, your lawyer can also answer your two most critical questions, i.e., do you have a lawsuit and do you need a lawyer.