Detailed Answer
This section explains what happens if you fail to resolve a New York personal injury claim before the applicable statute of limitations expires, what exceptions may apply, and practical steps to protect your rights.
1. Basic rule: time limit to sue
In New York most personal injury lawsuits must be started within three years of the date the injury occurred. That rule appears in the Civil Practice Law & Rules (CPLR) § 214: CPLR 214. If you do not file a lawsuit before that deadline, a court will usually dismiss your case as time-barred and you will lose the right to recover money for your injuries.
2. Special deadlines for certain claims
Some categories of cases have different deadlines. For example, medical malpractice claims generally must be started within two years and six months of the act or omission (see CPLR 214-A). Claims against municipalities also have special notice rules—before suing many public entities you must serve a written notice of claim within 90 days under New York General Municipal Law § 50-e (GMU §50-e).
3. What “not settling” means practically
“Not settling” means negotiations have not produced a binding agreement. Two important points follow:
- You do not have to settle a claim before the statute runs. Settlement is optional.
- If negotiations are ongoing, you should protect your right to sue by filing a claim (complaint) before the statute of limitations runs. Filing a complaint preserves your right to litigate even if you later settle out of court.
4. Consequences of missing the deadline
If you let the statute of limitations expire without filing a timely lawsuit (or qualifying for a tolling exception):
- The defendant can raise the statute of limitations as a defense and move to dismiss your suit.
- If the court grants that motion, your case is dismissed with prejudice and you typically cannot refile the same claim.
- Because you lose the right to seek money damages in court, your negotiating leverage falls sharply — defendants know you cannot sue, so they often will not offer meaningful settlement amounts.
5. Exceptions and tolling that might extend the deadline
New York law recognizes limited exceptions that may suspend or extend the filing deadline (“tolling”). Common examples include:
- Disability or minority (e.g., if the injured person is a minor or mentally incompetent) — see CPLR 208.
- Fraudulent concealment by the defendant so the plaintiff could not reasonably discover the claim.
- Active military service may invoke federal protections in some circumstances.
These exceptions are fact-specific and narrow. Do not assume tolling applies without legal advice.
6. Practical steps if settlement has not been reached as the deadline approaches
- Calculate the deadline now. Determine the date the statute runs (for a typical personal injury: date of accident + 3 years).
- Preserve evidence — photos, medical records, witness contact information, and receipts. Evidence can disappear or degrade quickly.
- Consider filing a lawsuit before the deadline even if you hope to settle. Filing preserves your right to sue while negotiations continue.
- If a government defendant is involved, timely serve any required notice of claim (e.g., GMU §50-e) — failure to do so can kill your claim even if the underlying limitation period has not passed.
- Speak with an attorney promptly. An attorney can confirm the correct statute, check for tolling, and file pleadings on time.
7. Settlement after the statute expires — is it possible?
Yes — a defendant can voluntarily agree to settle a claim after the statute expires. But without the ability to sue, you have much weaker leverage. Some defendants will still settle to avoid publicity, insurance consequences, or to be reasonable; but many will decline or offer much less than before the statute ran.
8. Example (hypothetical)
Someone is injured in a car accident on January 1, 2024. For a normal personal injury claim under CPLR §214, the statute expires January 1, 2027. If the parties have not reached a settlement by that date, the injured person must file a lawsuit on or before January 1, 2027 to preserve the right to recover money in court. If they miss that date without any applicable tolling, their case will likely be dismissed as time-barred.
9. Summary
Do not rely on ongoing settlement talks to protect your rights. Calculate the correct New York deadline for your case, watch for special rules (medical malpractice, government defendants), and file a lawsuit before the statute of limitations runs if negotiations have not produced a binding agreement. Missing the deadline usually ends your ability to recover damages in court.
Disclaimer
This article is for general informational purposes only and is not legal advice. It does not create an attorney-client relationship. For advice about a specific situation, consult a licensed New York attorney who can evaluate the facts and applicable law.
Helpful Hints
- Mark the limitation date on your calendar as soon as possible and set reminders well in advance.
- If negotiations are active but the deadline is close, file a complaint to preserve your rights and continue settlement talks afterward.
- For claims against a city, county, or other government entity, check and follow the notice-of-claim rules (e.g., GMU §50-e) before the deadline.
- Keep a written record of all settlement offers and communications — these can be important if a dispute arises later.
- If you were a minor at the time of injury or there was fraudulent concealment, tell any attorney you consult — those facts may change the deadline.
- Don’t wait to gather records. Medical records and other evidence can take weeks to obtain; start that process early.
- When in doubt, consult a New York personal injury attorney — many offer initial consultations and can confirm deadlines and possible exceptions.