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Home > FAQs

New York Law FAQs

Car Accidents, Medical Malpractice, Divorce, and Probate

At Rusk, Wadlin, Heppner & Martuscello, LLP, we find that our clients often have initial questions about their case that they need answered when they first seek out legal advice. Below we have collected some of the most frequently asked questions we encounter as we help clients in and around Ulster County in the areas of automobile accidents, medical malpractice, family law and divorce, and estate planning and probate. If you have other questions or need immediate assistance in these or any of our other practice areas, please contact our firm to speak with an attorney.

I was hit in an intersection when another driver ran a stop sign. I was driving over the speed limit at the time. Does that mean I can’t recover compensation from the negligent driver because I was speeding?

Your scenario raises the question of whether you were also negligent, and whether your own negligence contributed to the accident or not. If it did, you can still recover compensation from the other driver, but the amount you would receive would be reduced in proportion to the percentage of fault for the accident which gets assigned to you. However, the accident may not have been your fault at all. Don’t let the insurance company tell you that you were to blame and deny your claim or pay you less than you deserve. Talk to an attorney about the accident. At Rusk, Wadlin, Heppner & Martuscello, we will defend your actions whether in negotiations with the insurance company or in front of a jury in court, and we will fight to see that you are not unfairly allocated any of the fault for an accident you did not cause.

I know what UM and UIM stand for, but what is SUM?

SUM stands for Supplementary Uninsured Motorist. SUM can help you when the other driver’s bodily injury liability limits are lower than your own and applies regardless of whether the accident occurred in New York or out of state. SUM coverage was created in 1993 to close the gaps in UM and UIM coverage currently being offered. You may or may not have UM, UIM or SUM coverage on your policy. If you are in an accident, finding out exactly what type of coverage you have is an important initial step in knowing how to proceed with your claim.

p.s. If you don’t know what UM and UIM stand for, see our page on accidents involving Uninsured Motorists.

How long do I have to file a claim if I was injured by a doctor’s medical malpractice?

In most cases of negligence in New York, you have up to three years to file a lawsuit against the person who injured you. In medical malpractice cases, however, you only have two and a half years. This shorter “statute of limitations” applies when the injury occurred in a doctor’s office, hospital or other medical facility, but it does not apply to dentists, chiropractors or certain others whom you might think count as doctors. It is important to take your case to an experienced medical malpractice attorney who can determine when the injury occurred and which limitations period applies. Even if you think it is too late to bring a claim, it won’t cost you anything to give us a call and have us take a look at your case.

How do I get a “no-fault” divorce?

In 2010, New York became the last state in the country to recognize no-fault divorce as a ground for divorce. To get a no-fault divorce, you must be able to prove that the marriage relationship has irretrievably broken down for at least six months (you can prove this by having one of the spouses swear to that effect). You and your spouse must also resolve all of the issues applicable to the marriage, including the distribution of marital property, child custody and visitation, child support and spousal support. These matters must either be settled through negotiations or litigated in court.

You can still obtain a divorce in New York under one of six different “fault-based” grounds, which are:

  • Cruel and inhuman treatment
  • Abandonment
  • Imprisonment
  • Adultery
  • Living separate and apart pursuant to a separation judgment or decree
  • Living separate and apart pursuant to a separation agreement

Our family law attorneys can help you determine which ground or grounds for divorce apply to your situation and how to proceed to protect your rights and interests for yourself and your children.

Does a self-proving will have to go through probate?

If you know that the word “probate” comes from the Latin “to prove” and that probate is basically the process of “proving the will,” you might think that a self-proving will does not have to be probated, but that is not how it works. Any will must be submitted to probate and go through the process of probate administration under court supervision to be given effect. If the will is self-proving, however, the court accepts the will as valid without requiring any other evidence. If the will is not self-proving, it may be necessary to call in witnesses to testify about the will before it can be accepted by the court for probate. How do you make a will self-proving? Have yourself and the witnesses who signed your will sign an affidavit before a notary. This can be done at the time the will is executed and can be arranged by your estate planning attorney.

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