Getting a Recovery for Your Attorney’s Fee in Accident Cases and Insurance Lawsuits

April 19, 2012

Clients ask  whether they can separately recover their legal fees on top of the recovery for their injury or damage?  Unfortunately, the answer is “no.”

This question makes sense in that if the defendant did not injure the client, the client would not be put to the expense of hiring an attorney to get a recovery.  After all, the client is not profiting from the lawsuit.  He is merely being made “whole” after a loss.   

Under the so-called “American rule”, which is recognized in New York, each party of the lawsuit is responsible for his own legal costs.  In comparison, under the “English rule”, the winner can recover his legal costs against the losing side.

A disadvantage of the American rule is that the injured party is not made “whole”.  He must pay a portion of his recovery for his legal fees.  On the other hand, an advantage is that a losing plaintiff will not burdened with defendant’s legal costs if defendant wins.

 An exception to the rule is where either statute or a contract provides for the award of legal fees.  But, as a general rule legal fees cannot be recovered in personal injury, property damage, and breach of insurance cases.

Mark E. Seitelman, 4/19/12,


Recovering for New York Sidewalk Accidents; Getting to the “Root of the Problem”–Tree Roots and Sidewalks

June 28, 2011

New York City’s laws can be a minefield regarding sidewalk falls.

We recently had a case illustrating this point.

Our client tripped on a raised flagstone in front of The New School, a private college.   It appears that the cement was raised due to a tree root that had pushed-up the cement block.

    An example of a sidewalk damaged by tree roots.

Under the recently enacted Administrative Code sec. 7-210, the adjoining premises owner would be liable for the condition of the sidewalk.  However, the City is responsible for the tree well and the tree. 

We filed suit against the New School.  In turn, the college filed a third-party action against the City claiming that the City’s tree uprooted the sidewalk, and the City’s tree roots caused or contributed to the broken sidewalk.

The City moved to dismiss stating that it had no liability for the sidewalk and that responsibility falls on the adjoining property owner.   The college claimed that the defect was caused by the City’s tree.

The Court ruled that responsibility resides with the private property owner.  The City is out of the case.  See the decision here.

We have written extensively about sidewalk accidents in prior posts.  If you have been injured due to a broken sidewalk, please feel free to contact me for a free consultation at 800-581-1434 or

Mark E. Seitelman, 6/28/11,

Getting a Recovery for Golf Accidents

December 24, 2010

New York’s highest court has ruled that a golfer need not yell “fore” before hitting the ball.  See Anand v. Kapoor.

The Court of Appeals ruled that the injured golfer had no case in that he assumed the risks of the game.


Dr. Anand was playing with fellow doctors at a Long Island golf course.  While playing his ball from the rough on the first hole, Dr. Kapoor shanked a shot that hit Dr. Anand in the right eye.  A shank is a shot that flies off the club almost perpendicularly to the traget, i.e., straight to the right for a right-handed player such as Dr. Kapoor. 

Dr. Anand was 15-20 feet away.  Dr. Anand yelled a warning after  making the shot.  The shot detached Dr. Anand’s retina and resulted in total blindness in that eye.  Dr. Kapoor did not give a warning shout of “fore” before hitting the ball.

The Court of Appeals dismissed the case.  It ruled that Dr. Anand assumed the risks of the game, i.e., getting hit by a errant ball.  There was no proof that there was either reckless or intentional conduct by the golfer which would create liability.

This decision conforms with other court decisions involving injuries during sports.  Generally, the courts view sports injuries as a known and assumed risk.  An injured player would not have a case unless there was either gross negligence or intentional conduct. 

However, where the participant is injured from a defective playing field or malfunctioning equipment, there may be a case.  We have obtained recoveries for injuries due to a negligently maintained indoor hockey field and a poorly maintained New York City football field.  There may be a recovery in those cases.

If you have been injured in a sports accident, please feel free to call us at 800-581-1434 or write to

Mark E. Seitelman, 12/24/10,

Mark E. Seitelman Is in Super Lawyers

October 1, 2010

    I am pleased to announce that I am in the 2010 edition of Super Lawyers and that I am featured in a profile in a special advertising supplement to The New York Times Magazine (Sunday, October 3rd). 

The same profile will appear in the free-standing Super Lawyers magazine which is being mailed to all the lawyers in Metro New York.  

The New York Times     Only 5% of New Y0rk attorneys are elected into Super Lawyers.  They are nominated by fellow lawyers, and attorneys enter Super Lawyers based on their credentials, experience, and reputation for excellence and integrity.

I have been named a Super Lawyer in the following fields:

  1. plaintiffs’ personal injury (general);
  2. medical malpractice; and
  3. insurance coverage.

I am honored to be selected again into the ranks of Super Lawyers.  This has been my 4th year.  I thank my clients and colleagues for allowing me to be of service to them.

Mark E. Seitelman, 10/1/10,

See an Attorney Early; Do Not Let Time Deadlines Pass

August 16, 2010

Every once in a while a client comes to us when it is too late.  

I discussed the prudence of seeing an attorney early in a prior post.

Last week a client asked our help on the following case:

Mrs. Mary Moore sustained a substantial loss of  her personal property due to a flooded basement.  The flood was caused by construction next door.  The contractor struck a water main.

There appears to be no question that the contractor was negligent.  His insurance company paid other people damaged by the flood.

Mrs. Moore sustained about $1,000,000 in personal property damage, such as damaged artwork, antique furniture, collectibles, and a vast designer clothing collection which included many unworn garments with their tags.

First, Mrs. Moore sought recovery from her own homeowner’s insurer, Allstate.  About 2 years after the flood, Allstate paid its full limits of $350,000.  She then sought to collect $650,000 from the contractor’s insurance company, Old State Dominion Insurance Company.

Mrs. Moore engaged in much negotiation with Old State’s representative.  Documentation was exchanged, and there were inspections of the property.

According to Mrs. Moore Old State’s adjustor told Mrs. Moore a number of times that a “claim must be filed no later than July 8th”, which was 3 years from the flood.  Mrs. Moore took it to mean that she must send-in all of her claims documentation.  There was also a conversation where Old State’s adjustor’s asked whether Mrs. Moore hired an attorney.  Mrs. Moore answered “no”.  “Good” was the adjustor’s response because “we can settle faster without an attorney.”

Mrs. Moore sent extensive and very organized paperwork supporting her claim to Old State before the 3 year deadline.  On July 16th, a week after  the 3 year anniversary, Mrs. Moore and the adjustor had an all day meeting to review the claim submission.  After this session another meeting was planned for August 2nd in which numbers would be discussed.

However, that August 2nd meeting was cancelled.  Old State sent a denial letter to Mrs. Moore on July 28th.  The claim was denied since suit was not filed within the 3 year statute of limitations.

We could not help Mrs. Moore.  She failed to file suit before the statute of limitations expired.  If suit had been filed, negotiations could have continued and may have led to an eventual settlement.

The law has a strong policy in upholding statutes of limitations.  The law favors  an end to claims and lawsuits.  In order to claim that the statute of limitations would not apply, we would have to show fraud by the insurance company.  Negotiation before or after the deadline will not be deemed a waiver of the statute of limitations.  Furthermore, there was no fraud in the adjustor’s statement that it was good that an attorney was not hired.  This was not tantamount to lulling the client into not hiring an attorney.   Furthermore, there was no offer made which could cause the client to think that the case was settled.  In sum, we could not show any of the extraordinary circumstances which would allow the case to proceed.

The lesson for clients is to consult with an attorney as soon as possible after a loss or an injury.  An injured client should be aware that there are strict time limits in which to pursue a claim or lawsuit.  Defendant will take every advantage of the statute of limitations which is a “slam dunk” defense.  

Mark E. Seitelman, 8/16/10,

Getting a Recovery for Your Personal Injury or Property Damage Against New York City Transit Authority

July 28, 2010

On cable news station NY1 there was a story showing the traps for an injured person in going without an attorney against New York City Transit Authority.  See story here.

       The motorist and his damaged vehicle.

Apparently, a NYCTA bus caused the front end damage.  The vehicle owner claims that it was an open and shut case against NYCTA, and he  was told so by a NYCTA supervisor at the scene.

The owner tried to settle his $3,800 collision bill.  He got nowhere by calling NYCTA and leaving numerous voicemails.  Finally, he sent a notice of claim to NYCTA by Federal Express 2 days short of the 90 day deadline.  NYCTA returned the notice as invalidly served.  NYCTA says that the statute clearly states that service must be made either by personal delivery at its office or by certified or registered mail.  Fedex does not count.

Therefore, the owner’s claim was denied as being improperly served.  He called the consumer reporter, “NY1 for You”, to air his story.  

 Here are some valuable lessons:

  • Do not try to handle your own case.  It is little technicalities, such as this, which will trap a regular person.  A failure to properly serve a notice of claim will foreclose any recovery no matter the merits of your case. 
  • Statutory requirements, such as the notice of claim on NYCTA, MTA, New York City, and other government entities, are strictly applied and are most unforgiving.  This case is an example.  Another example is timing.  A notice of claim served as much as 1 day late is invalid.
  • A typical mistake in serving the notice of claim is serving it on wrong place.  The notice must be served at a specially designated office.  For example, a notice of claim served on an NYCTA garage would be invalid.  The notice must be served on NYCTA’s main office on Livingston Street, Brooklyn, New York.
  • Another mistake is naming the wrong entity.  For example, the subways are owned and operated by NYCTA and not New York City.  The notice of claim must be served on NYCTA offices on Livingston Street.  A notice served on New York City at its Comptroller’s Office would be invalid.
  • If you decide to handle the case on your own, call the Legal Referral Service (212-626-7373) for an initial consultation with an attorney who can provide some guidance.  The Legal Referral Service is a non-profit group supported by the bar associations of New York City.  It charges $35 for an half hour consultation with an attorney.   

If you have been injured as a result of an accident with NYCTA, MTA, NYC, or any other governmental entity, please feel free to call me for a free consultation at 800-581-1434 or write to

Mark E. Seitelman, 7/28/10,

Getting a Recovery for Your Child’s Injuries in a Dangerous Park or Playground; A Follow-Up to the Brooklyn Bridge Park “Hot” Play Surfaces

July 16, 2010

The dangerous “play domes” in the new Brooklyn Bridge Park have been removed by New York City.   The park had been opened only a couple of months.

See our prior post about how these steel domes became burning hot in the sun.  One child suffered 2nd degree burns.

This is a flagrant example of dangerous playground equipment that was defectively designed.

If your child has been injured due to a fall or other accident on playground equipment, such as monkey bars, jungle gym, or slide, here are some issues for consideration:

  • Did the equipment create a falling or tripping hazard?  A safety engineer will need to inspect the equipment.  As in the example of the “play domes”, the equipment may be inherently unsafe by its design.
  • Was there adequate padding on the ground surface?  As a general rule, it is considered unsafe to leave exposed a concrete floor.  It is considered safer  to have rubber padding cushion a fall.  It has been the practice to use a rubber floor surface below swings and monkey bars.
  • Is the equipment in sound condition?  For example, if a rung were either missing or loose on the sliding pond ladder, such would be negligent maintainance of the equipment.  Another example would be rubber padding which had been old and torn and should have been replaced if there were adequate, regular maintainance.

We have handled playground accident cases.  If your child has been injured in a playground accident, please feel free to call me for a free consultation  at 800-581-1434 or write to

Mark E. Seitelman, 7/16/10,  

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