A Pothole Ate My Car: Seeking Payment if a Pothole Damages Your Car February 9, 2011

Each winter the cold contracts our roadway surfaces and then comes the snow, ice and rain followed by the plows, salt and sand and, when the temperatures rise back above freezing, wham, we have the perfect formula for creating potholes.  Given the rough winter we have had, the New York metropolitan area is suffering from a blight of potholes. All the suburban counties report dramatic increases in pothole complaints this year. New York City received 1,781 calls about potholes in January alone. Things are worse in New York City where efforts to trim the budget have cut the number of pothole repairs workers.

Potholes can make for a jarring ride, though sometimes they can do much worse. Anyone who has driven through some New York winters can share some pothole adventures. On a Christmas Eve a number of years ago, we drove back from my parent’s home and hit a massive pothole on the Cross Island Parkway. As we limped to the shoulder with our flat tire, we squeezed in next to another half-dozen cars with flats from the same pothole. A few years back, a quick drive on Grand Avenue in Deer Park left me with two flat tires.  Potholes can cause blowouts, bend tire rims and even cause accidents. So if you suffer damages due to a pothole, what can you do?

Receiving compensation for damage due to a pothole can be difficult, very difficult, but not impossible. In general, you need to meet the following conditions to have a chance at receiving compensation:

• You need to know the municipal entity responsible for the road.
• The municipality had to have prior notice about the pothole and had enough time to repair it.
• You need evidence that the pothole caused the damage and proof of the cost to repair the damage.
• You need to navigate the maze of bureaucracies to file a claim and negotiate payment.

Even meeting these four criteria does not guarantee you can receive compensation. New York State conveniently passed a law that says New York State is exempt from liability for damage caused by potholes from November 15 – May 15. For cities, towns, and villages, proving prior notice can be difficult as the notice must be specific about location and contain information that can vary from municipality to municipality. In addition, the notice must be filed with the appropriate agency.  For example, simply saying there is a huge pothole on a given block may not meet the prior notice requirement if local law requires a more specific location.

Understand, you may meet significant resistance so you must persist. Consider what North Hempstead spokesperson, Collin Nash, told Newsday about paying for pothole claims, “There’s no hard-and-fast rule. How do we know your suspension wasn’t blown in Manhattan?”

If you have suffered damages due to a pothole and you want to pursue compensation for damages, here are some steps you can follow:

1. Identify who owns the road: Was it a New York State road, a county road, a town road? It is important to know so you know where to seek compensation.
2. Collect as much evidence as possible about the pothole, including its exact location. Take pictures; even measure the size of the pothole.
3. Collect as much evidence as possible that the pothole caused your damage. Record the exact time the pothole accident happened. Get statements from any witnesses. Collect receipts from tow trucks or repair services. The more evidence the better.
4. File a claim with the appropriate municipal agency. In New York City, you can file a claim on line with the New York City Comptroller’s office. Click here for the form. In other locations, you need to file the claim with the appropriate office; often times, that is the Town Attorney or the Town Clerk’s office. You can call to ask. If you file the claim with the wrong office, you may lose your claim. The claim can take the form of a letter and needs to state what happened, where it happened, what date and time and what evidence you have. You have 90 days from the date of the incident to file a claim, though the sooner you file the better.
5. Make a Freedom of Information Law (FOIL) request for information about any prior notice for the pothole that caused the damage. You want to know if the municipality had prior notice. In New York City, you can get a FOIL request form for the Department of Transportation here.  Most municipalities have a FOIL form that you can receive and submit to the appropriate agency or you can simply write a letter making a FOIL request. For example, in Suffolk County you can download a FOIL from here and then file it with the Suffolk County Department of Public Works. In Nassau County, you can file a FOIL online here. Submit it to the Department of Public Works.

Once you file the claim, a representative from the City or the municipality should contact you to try to resolve the claim. The representative may want an estimate for the damage repair and the evidence you have that the pothole caused the damage. The representative will notify you if the municipality will pay for the damage and how much.

 Going to Court

If you file a claim, the municipality may refuse to pay or may not offer enough. If you want to pursue the matter, you can go to court. In New York City, you can go to Small Claims Court for damages up to $5,000. You will need at least two damage estimates. You can find more information about NYC Small Claims Court here. You do not need an attorney as the State designed Small Claims Court as a place where citizens could represent themselves.

If you live on Long Island, you need to file an action in District Court in either Nassau or Suffolk County.  District Court has jurisdiction for any amount up to $25,000.  Again, you will need at least two estimates of the damage sustained by your vehicle and you can represent yourself.  You can find more information about the Nassau District Court here and the Suffolk District Court here.

I hope you have found this information helpful. I practice personal injury law in the New York Metropolitan areas. If you or a loved one has suffered an injury through the negligence or recklessness of another, you may be entitled to compensation. If you have questions, you should consult an experienced personal injury lawyer in New York. I will be glad to answer your questions and assist you. There is never a charge for this consultation. You can call me at 1-800-660-1466 or email me. You can also visit my website or read more on my blog, New York Law Thoughts.  

Carol L. Schlitt
New York Personal Injury Attorney
www.SchlittLaw.com

http://nylawthoughts.com 
1-800-660-1466
Carol@SchlittLaw.com