Changing attorneys years into a New York injury case: what it costs you and what it does not

Attorney Answer

You may change attorneys at any point in a case you have already commenced, and doing it now would not restart your case or put your claim back at risk of the statute of limitations — that clock was answered when the action was filed in 2018. What a change of counsel does affect is fees, momentum and the handoff of a file that is already years deep, so the decision is better made after you know why the case has not moved than before.

Start with the deadline question, because it is the one that frightens people out of acting. CPLR 214(5) sets three years for "an action to recover damages for a personal injury except as provided in sections 214-b, 214-c, 214-i and 215," measured from the date of the injury. Commencing the action satisfied that statute. A substitution of counsel is a step inside a pending case; it is not a new action and does not reopen the limitations question. What can still be lost inside a pending case are the court's own dates — discovery deadlines, a note of issue date, a compliance conference — and those are the deadlines a new attorney would need to see immediately.

On the merits, a fall is not a motor-vehicle action, so New York's pure comparative fault rule governs it. CPLR 1411(a) provides: "Except as provided in subsection (b) of this section, in any action to recover damages for personal injury, injury to property, or wrongful death, the culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of risk, shall not bar recovery." Damages are diminished in proportion to the claimant's share, not eliminated by it. So an argument that you should have watched where you were walking is a discount argument, not a defense that ends the case.

The cost of switching is mostly about the fee. Under New York practice a discharged contingency-fee attorney generally retains a claim for the value of the work already done, payable out of any eventual recovery rather than out of your pocket, and the incoming and outgoing lawyers usually resolve that share between themselves. A client who changes counsel in a contingency case therefore does not ordinarily pay two full fees, but the arrangement should be confirmed in writing before the change. You are also entitled to your file. If the reason for the delay is that the case is simply on a crowded calendar or waiting on a defendant, a new attorney inherits the same wait; if it is that nothing has been done, that is a different answer.

What you can do

1. Ask your current attorney, in writing, for a status letter: what stage the case is in, what is outstanding, what dates the court has set, and what the next step is.

2. Ask specifically whether discovery is complete and whether the case has been placed on the trial calendar — those two answers separate a slow case from a stalled one.

3. Request a copy of your file, including the pleadings, the bill of particulars, medical records and any deposition transcripts.

4. Take that file to a second New York personal-injury attorney for an independent opinion before you discharge anyone.

5. Get the fee handling in writing — how the outgoing attorney's share will be resolved out of any recovery — so the change does not increase what the case costs you.

6. If your concern is professional conduct rather than pace, raise it with the attorney directly first and ask a New York attorney what oversight route fits.

⏱ Time limits apply. The three-year period of CPLR 214(5) runs from the date of the fall and was satisfied by commencing the action, so it is not the clock to worry about now — the deadlines that matter are the ones the court has set inside your case, and they are on the docket rather than in a statute. Whether any of them is close depends on facts this page does not have. Have a New York attorney read the file and the current scheduling order before you make the change.