One of the most common defenses the insurance carrier will raise when an injured employer makes a claim for Workers’ Compensation benefits is that the employer did not have timely notice that an accident occurred. Therefore, it is extremely important for an injured worker to report an injury directly to their supervisor immediately after it occurred. Although notice orally given is generally sufficient, it is best to provide a written account of the accident and injury. If notice cannot be given immediately, it MUST be given within 30 days from the date of the accident. If the employer does not receive notice that an employee was injured within 30 days from the date of the injury, the injured worker’s claim for benefits is likely to be time-barred. Once an employer is on notice, an employee has two years to commence a claim for Workers’ Compensation benefits.

It is also critical to seek medical treatment immediately. Workers’ Compensation benefits cannot be paid unless there is medical documentation of a work related injury.　 Upon receiving medical treatment, it is important for an injured worker to provide to his medical provider a narrative of the nature of his job, how the injury happened, and the extent of his injury. Be sure to advise the medical provider that you are there because of a work related accident. It is easier to have all medical bills related to your work related injury billed to the insurance carrier. It is common for injured workers to pay for medical expenses through their own private insurance. Although an attorney can attempt to have those expenses reimbursed to the injured worker, this is not the preferred approach.

For Workers’ Compensation benefits to continue to be paid there must be documentation of an ongoing disability. To ensure that this requirement is met, it is advised that an injured worker sees their treating doctor every six weeks. If an injured worker goes more than three months without seeing their treating doctor the insurance carrier entitled to suspend benefits as there is no documentation of an ongoing disability.

New York’s “No-Fault” Ground: What is “irretrievable breakdown of the marriage”?

An irretrievable breakdown of the marriage allows one spouse, unilaterally, to end a marriage and to do so without the agreement of the other spouse. However, the 2010 law provides that a court cannot grant a judgment of divorce until and unless the economic issues of the marriage are dealt with.

To prove the ground of irretrievable breakdown of the marriage the party seeking the divorce must demonstrate that: (1) the relationship between husband and wife has broken down irretrievably; (2) for a period of at least six months; (3) provided that one spouse states this under oath; and (4) proves that the “economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts’ fees and expenses as well as the custody and visitation with the minor children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce.”¹

The statute does not define what is meant by a “marriage that has broken down irretrievably,” but it is likely New York courts will look at what other states in the United States have done where there are similar laws.

What is “cruel and inhuman treatment”?

Cruel and inhuman treatment can involve either physical or mental cruelty. To be a reason for divorce, the treatment must have such a serious effect on the physical or mental health of the divorce-seeking spouse that it is not safe or proper for the parties to continue the marriage.

Some examples of acts that courts have held to be cruel and inhuman treatment for divorce purposes include physical attacks on a spouse; constant screaming, profanity or other verbal abuse; gambling away the household funds; staying away from the house too often without an explanation; going out with another man or woman; and wrongfully accusing the other spouse of adulterous relations with another woman or man.

Alcoholism, by itself, usually is not a sufficient basis for divorce, unless your spouse becomes cruel or violent when intoxicated, so that you fear for your health and safety.

Mental illness also is not a sufficient basis for a divorce on the grounds of cruel and inhuman treatment; unless a spouse’s other behavior could be defined as “cruel and inhuman treatment.”

However, mental illness is not a defense to cruel and inhuman treatment. Nevertheless, a court may declare a marriage void when a spouse has been incurably mentally ill for a period of five (5) years or more.

The courts have held that when there is a long-term marriage (often fifteen or more years married) the acts of cruelty must be more substantial to justify a divorce. What might be cruel in a short marriage may not be sufficient basis for divorce in a more mature marriage relationship.

Each case, however, stands on its own facts. The court decides whether or not these facts justify a dissolution of the marriage. Generally, the acts or the conduct on which the divorce was based must have occurred within five years prior to the commencement of the action to be considered by the court.

What does “abandonment for one or more years” mean?

Abandonment means that your spouse has intentionally left you without your consent, and of his or her own accord (that is, you did not force or lock your spouse out of the house)) and without justification.

You must also prove that your spouse had no good reason for leaving (such as your ill treatment or your consent), that your spouse left with the intention of never returning, and that your spouse did not offer in good faith to return.

Unjustified refusal by a spouse to have sexual relations is also considered a “constructive abandonment” and may be considered cruel and inhuman treatment.

Abandonment must exist for a continuous period of at least one year before the action is started to be a basis for divorce in this state. There is no statute of limitations on abandonment, but it will depend on specific facts such as health issues, livelihood, compelling family obligations or other reasons.

However, a separation agreement eliminates the ground of abandonment, since when both parties sign an agreement, the consent to living apart.

What is the basis of divorce if a spouse has been in “imprisonment for three or more years”?

Divorce on the grounds of imprisonment for three or more years means that the defendant actually must have served three years or more in prison before an action can be commenced, even if the conviction is later overturned or reversed.

What is adultery?

Bringing an action on the ground of adultery, especially if your spouse is going to contest it, is not an easy matter. The proof of adultery here is difficult. Generally , you are not permitted to testify against your spouse, and you must have a witness ready to convince the court that your mate did engage in sexual relations with another person. Adultery is usually proven by circumstantial evidence, that is, by showing that your spouse had the opportunity, inclination and intent to engage in sexual relations with the other person.

In addition, there are four defenses to the charge of adultery, and if any of these are proven, the court will deny the divorce:

“Procurement” or “connivance”- Procurement means that one spouse actively encouraged

the other to commit adultery. Connivance is similar to “collusion” or “consent” by a

spouse to the adultery.

“¹ DRL § 170(7).

Marriage is a civil contract. The state has an interest in preserving marriages. Accordingly, the marriage relationship only can be dissolved by a court, by either a divorce or an annulment. It also may be altered by a decree of separation granted by our courts. In any case, there must be a proceeding in the Supreme Court (which contrary to public thinking is not the highest court in New York State, but rather the trial court of general jurisdiction) in which the person seeking the divorce, separation decree or annulment must prove a basis for the divorce.

Pursuant to legislation signed into law by the Governor of New York State in 2010, New York will now grant a divorce when there has been an irretrievable breakdown of the marriage, for six (6) months or longer joining the rest of the country in instituting “no-fault” divorce.¹

New York continues to have what is called a conversion divorce mechanism whereby parties can obtain a divorce pursuant to a separation decree or a separation agreement for more than a year and the party seeking the divorce has substantially complied with the terms of the separation decree or the separation agreement. Additionally, other fault grounds exist as noted below.

In order to get a judgment of separation, pursuant to DRL § 200, a party must prove cruel and inhuman treatment, abandonment, non-support, adultery or imprisonment.

What are the grounds for divorce?

• Four of the grounds in this state are based on the fault of one of the parties:
• Cruel and inhuman treatment;
• Abandonment for one or more years;
• Imprisonment for three or more years; and
• Adultery.

The other “no-fault grounds are:

• One year of living apart under a separation agreement;
• one year of living apart under a separation decree granted by a court;
• an irretrievable breakdown of the marriage for a period of at least six months, provided that one spouse has so stated under oath.

¹Domestic Relations Law (DRL) § 170(7).

Often, people confuse the terms “accident” and “negligence”. In daily life, it doesn’t matter if we use these words interchangeably. In a court of law, it matters a lot. You cannot sue somebody if your injuries were simply the result of an “accident”. You must be able to prove that someone was negligent.
We will meet with you for a free consultation to determine if the facts of your accident meet the legal definition of negligence.  In trying to determine what happened, it’s important that you provide accident reports, photos and names of witnesses.  If you don’t have them, we can get them for you.  Once a determination is made that you were injured as the result of somebody else’s negligence, we need to determine what your damages are.  The physical injuries you sustained must be related somehow to the accident.  For example, if you hurt your back in a car accident you can’t sue somebody for a pre-existing lung ailment.