How to Maximize New York TBI Compensation After an Injury Claim

Traumatic brain injuries range from concussions to more severe injuries that can affect cognition, mood, and the ability to work. In New York, TBI claims may arise from motor vehicle crashes, falls, construction incidents, assaults, and defective products. Some workplace injuries may also involve workers’ compensation and potential third-party claims. The strategies below can help you protect and pursue compensation under New York law.

Act Quickly to Preserve Your Rights

Deadlines can be short and vary by claim type and defendant. For negligence claims, the limitation period is often three years (see CPLR § 214(5)), but shorter periods and early notice rules may apply—for example, many municipal claims require a Notice of Claim within 90 days (see GML § 50-e). If a child is injured, timing rules can differ. Because timing affects leverage and recovery, speak with counsel promptly to identify and meet all applicable deadlines.

Get Immediate and Ongoing Medical Care

Early evaluation helps tie symptoms to the incident and can reveal issues not obvious at the scene. Continue care with appropriate specialists (e.g., neurologists, physiatrists, neuropsychologists, vestibular or cognitive therapists). Keep test results, imaging, treatment plans, and provider notes. Gaps in care or missed follow-ups can be used by insurers to argue your injury is minor or unrelated.

Build a Comprehensive Evidence File

• Incident evidence: photos or video, 911 audio, police/incident reports, witness contacts, and any vehicle or site data.
• Medical evidence: emergency records, imaging (CT/MRI where performed), neuropsychological testing, medication logs, therapy notes, and symptom journals.
• Employment and earnings: pre- and post-injury pay stubs, W-2s/1099s, performance reviews, disability paperwork, and employer correspondence.
• Functional impact: daily activity logs, caregiver notes, calendars showing headaches, fatigue, light/noise sensitivity, and missed events.
• Experts: treating doctors, life care planners, vocational experts, and economists to translate medical limitations into future care and wage-loss figures.

Fault and Comparative Negligence in New York

New York follows pure comparative negligence. Your compensation may be reduced by your percentage of fault, but you can still recover even if you share responsibility (see CPLR § 1411). This makes careful liability investigation essential: secure surveillance footage quickly, send preservation letters, and retain appropriate experts (e.g., accident reconstruction, human factors, or building code) to address any alleged fault.

Insurance Coverage to Identify Early

• At-fault liability coverage: identify all applicable primary, umbrella, and excess policies.
• No-fault/PIP benefits: available after many motor vehicle accidents regardless of fault (see Ins. Law § 5103 and definitions in § 5102).
• UM/SUM coverage: uninsured and supplementary underinsured motorists coverage may provide additional bodily injury benefits (see Ins. Law § 3420(f)(2)).
• Premises/commercial policies: if the injury occurred on property or at a worksite, explore owners’, tenants’, and contractors’ coverage. Prompt written notice to all potential carriers helps protect coverage and avoid late-notice disputes.

Maximizing No-Fault and Serious-Injury Considerations

In motor vehicle cases, New York’s no-fault system can provide medical and wage benefits up to the policy limits regardless of fault (see Ins. Law § 5103). To pursue non-economic damages (pain and suffering), you generally must meet the statutory “serious injury” threshold (see Ins. Law § 5102(d)). TBI-related proof—documented cognitive deficits, consistent neurological findings, and, where present, supportive imaging—can help establish the threshold.

Calculate All Categories of Damages

• Medical expenses: past bills and projected future care (medications, therapies, neuropsych testing, assistive tech).
• Lost earnings: past wage loss, diminished future earning capacity, and loss of employment benefits.
• Out-of-pocket costs: treatment travel, household help, home or vehicle modifications.
• Non-economic harms: pain, suffering, loss of enjoyment, and cognitive/emotional impacts.

Use a life care plan and economist report to support future costs and present-value figures.

Practical Tips to Strengthen Your Claim

Avoid Common Insurance Pitfalls

• Expect broad record requests or recorded statements. Provide targeted records when appropriate and avoid recorded statements without counsel.
• Be careful with social media—posts, photos, and fitness data can be misconstrued.
• Track all insurer deadlines and denials in writing, and appeal benefit denials with supporting medical opinions.

Leverage Expert Testimony

TBI symptoms are often “invisible.” Treating physicians, neuroradiologists, neuropsychologists, and vocational experts can explain how test results correlate with functional limits, why patients may appear “normal” despite deficits, and what accommodations or restrictions are necessary at work and home.

Settlement Strategy vs. Litigation

Early settlement can be efficient if liability is clear and coverage is adequate. Where disputes exist about fault, causation, or the seriousness of injury, litigation may improve leverage. Preserve discovery evidence, depose key witnesses and medical providers, and consider mediation at strategic points after expert disclosures and economic reports are exchanged.

Special Issues: Public Entities and Construction Sites

Claims involving municipalities or public authorities have unique notice and timing requirements (see GML § 50-e). Certain construction-site injuries may involve distinct statutes (e.g., Labor Law § 240(1) and § 241(6)). If the injury occurred on the job, workers’ compensation rules may apply, but third-party claims might still be available.

Checklist: What to Do Now

Ready to talk? Contact us to discuss your situation.

FAQ

How long do I have to file a TBI lawsuit in New York?

Many negligence claims have a three-year limitation period, but some claims have shorter deadlines or notice requirements, especially against municipalities. Consult an attorney promptly to confirm your specific deadlines.

Do I need to meet the serious injury threshold for a car crash TBI?

Yes, to pursue pain and suffering after most motor vehicle accidents, you generally must meet the statutory serious injury threshold under Insurance Law § 5102(d).

Can I recover if I was partly at fault?

Yes. Under pure comparative negligence, your recovery is reduced by your percentage of fault but is not barred.

What insurance benefits are available immediately after a crash?

No-fault (PIP) may cover medical expenses and a portion of lost wages up to policy limits regardless of fault. Additional recovery may come from liability and UM/SUM coverage.

Key Legal References

• CPLR § 1411 (pure comparative negligence).
• Insurance Law § 5102 and § 5103 (no-fault/PIP and serious-injury definitions).
• CPLR § 214(5) (limitations period for personal injury negligence).
• GML § 50-e (municipal Notice of Claim).
• Insurance Law § 3420(f)(2) (UM/SUM coverage).
• Labor Law § 240(1) and § 241(6) (construction site liability statutes).

Disclaimer

Attorney Advertising. This blog post is for general informational purposes only, is not legal advice, and does not create an attorney–client relationship. New York laws and deadlines change and vary by case (including special rules for municipalities and claims involving minors). Consult a New York attorney about your specific situation. Prior results do not guarantee a similar outcome.