A BRIEF DISCUSSION REGARDING MUNICIPAL LIABLITY

Presented by Vito A. Cannavo

ISSUES REGARDING MUNICIPALITIES, BIG APPLE MAPS,

TRIVIAL DEFECTS, SPECIAL USE AND

LAND OWNER LIABILITY

Presented to the New York State Trial Lawyer’s Institute

May 19, 2011

I am supposed to speak to you today about issues involving the “rules” of practice which are unique to municipal claims. I guess that, from a CLE standpoint, it sounds better to outline a topic that way, instead of telling you I really will be speaking about sandbags, traps and riddles. A “rule” suggests some standard, predictable way of doing things. Looking at the “rules” in City cases, there are numerous exceptions in some areas, and in other areas, few guidelines. Add to the mix factual hair splitting and “public policy” considerations, and you have created a nightmare of a practice area for the unwary practitioner. The procedural pitfalls are a challenge for even those most familiar with the hurdles they pose. And, the judicial interpretations of those “rules” sometimes appear as predictable a guide as the next spin at one of the slot machines down here in Atlantic City.

I also learned long ago never to underestimate any adversary. The dedicated staffs of the local corporation counsel do nothing but handle these claims. They develop an expertise in the nuances of City practice that results in many a failed attempt by an earnest plaintiff eager to assault the City’s coffers. Be prepared for a worthy adversary in these matters, and don’t assume that understaffed and underpaid public law offices are an easy target.

Finally, don’t overlook the public relations campaign being mounted against these claims. Do you wonder why elected officials routinely seize the bully pulpit to tell the public that the claims are bankrupting the City and taking money away from their kids’ education? Have you had your fill of media hype over “frivolous” claims? Or, did you ever wonder why certain insurance companies and public agencies mount “anti-fraud” campaigns inviting the good (i.e., non-litigious) citizens of the City to report fraudulent lawsuits? Because while “tort reform” may not pass in the Legislature, the people who hear and see these messages are your jurors!

So, welcome to the world of municipal liability. Just remember to keep the Pepto-Bismol close by and your legal malpractice insurer on speed dial.

I. The Procedural Requirements for Making a Claim

A. Naming the Correct Entity

i. Maze of Names

Unlike most other legal actions, a lawsuit against a municipality involves preliminary legal requirements, which can be fatal if not properly addressed. When presented with a claim involving an obvious governmental agency, the practitioner should automatically consider that special requirements will apply. There are obvious government agencies where this will occur, such as: the City of New York and the New York City Transit Authority. But, there are numerous separate entities that, although seemingly linked to the “City”, will impose these special requirements as well:

- Metropolitan Transportation Authority

- MTA Bus Company

- Manhattan and Bronx Surface Operating

Authority (“MABSTOA”)

- Staten Island Rapid Transit Operating

Authority (“SIRTOA”)

- Metro North Railroad

- LIRR

- Port Authority of New York and New Jersey

- Triborough Bridge and Tunnel Authority

- New York City Housing Authority

- New York City Health & Hospitals Corporation

New York City School Construction Authority

There are also some not so obvious, where a Notice of Claim requirement exists:

- Battery Park City Authority

- Jacob Javits Convention Center

(New York Convention Center Development

Corporation)

- Westchester Medical Center

(“Westchester Health Care Corporation”)

(See Medley v. Cichon, 305 A.D.2d 643, 761 N.Y.S.2d 666(2d Dep’t 2003), in case you mess this one up)

Consider, for example, Medley v. County of Westchester, 36 A.D.3d 868, 828 N.Y.S.2d 575 (2^nd Dep’t 2007), where plaintiff fell at the Playland Amusement Park in Rye, New York. Before reading this decision I did not know that Playland is owned by the County of Westchester!

There are dozens of similar governmental or quasi-governmental agencies that require a Notice of Claim. When in doubt, find out! You have 90 days to file your claim and it is critical that you investigate the entity immediately. A good place to start is the Public Authorities Law which lists many of these entities. The Green Book published by the City of New York is the “Official Directory of the City of New York” and contains a complete listing of municipal agencies and their staffs.

Don’t assume that there is a unity of interest. Don’t assume that the MTA operates the LIRR. File a separate claim where there is a separate title for the entity, or any doubt, and avoid some of these common mistakes:

The City of New York was separate from the Board of Education, and you had to serve and name each separately. Then along came the “Department of Education”. Even though the Mayor has direct control over this Department and has it housed right there at City Hall, the old rules apply, meaning you must name both in the Notice of Claim and Summons and Complaint. See Myers v, City of New York, infra; Perez v. City of New York, infra.

The City of New York is not the New York City Health and Hospitals Corporation or the New York City Housing Authority.

Metropolitan Transportation Authority is not the NYCTA, LIRR, Staten Island Rapid Transit Operating Authority, Metro-North.

One of my favorites: “MABSTOA” – Manhattan and Bronx Surface Transit Operating Authority. But isn’t this the NYCTA or MTA? NO, consider it a separate entity which operates the public bus lines in Manhattan and the Bronx only. It does not operate the subways, (the NYCTA does). It does not operate buses in any other borough (in Queens, Brooklyn and Staten Island, the NYCTA does). So name them separately in the Notice of Claim; serve them in person individually.

See, Young v. A. Holly Patterson Geriatric Center, 40 A.D.3d 990, 837 N.Y.S.2d 201 (2d Dep’t 2007)(plaintiff served Notice of Claim on County of Nassau; Geriatric Center owned and operated by Nassau County Health Care Corporation (Nassau County Medical Center), failure to serve Notice of Claim on Geriatric Center and NCHHC warrants dismissal of complaint); Bertolino v. Town of North Elba, 16 A.D.3d 805, 791 N.Y.S.2d 204 (3d Dep’t 2005) (plaintiff sued town and state but failed to timely serve the Olympic Regional Development Authority which was a separate entity not united in interest); LoCiciro v. Metropolitan Transportation Authority, 288 A.D.2d 353, 733 N.Y.S.2d 477 (2d Dep’t 2001) (claimant sued MTA for injury at LIRR station; leave after the statute of limitations to add LIRR denied since the two were separate entities); Goldman v. City of New York, 287 A.D.2d 687, 732 N.Y.S.2d 78 (2d Dep’t 2001) (injury on broken steps at public school; notice of claim named both the City of New York and the Board of Education; complaint dismissed where only City named, since Board, not City, was proper party regarding negligent maintenance). And take a look at Tahmisyan v. City of New York, 295 A.D.2d 600, 744 N.Y.S.2d 197 (2d Dep’t 2002) where the Court held that you could not rely on the City’s answer regarding the ownership of the premises.

In Medley v. Cichon, however, 305 A.D.3d 643, 761 N.Y.S.2d 666 (2d Dep’t 2003) the Court excused the confusion caused by the change in name of the Westchester County Medical Center to the Westchester Health Care Corporation because of “excusable error” in naming the correct entity.

ii. The New York City Health and Hospitals Corporation

Confusion about the correct entity to sue can lead to disaster, as evidenced by the result in Scantlebury v. New York City Health and Hospitals Corporation, 4 N.Y.3d 606, 797 N.Y.S.2d 394 (2005). In Scantlebury, plaintiff had claimed medical malpractice because of treatment received at the Kings County Hospital, which is operated under the auspices of the New York City Health and Hospitals Corporation (“HHC”). Plaintiff served a Notice of Claim alleging medical malpractice upon the Comptroller of the City of New York. The comptroller thereafter served a notice of hearing pursuant to Section 50-h of the General Municipal Law and conducted that hearing. Plaintiff thereafter filed a Summons and Complaint alleging medical malpractice, and served the Complaint on the New York City Health and Hospitals Corporation. In her complaint, plaintiff alleged that a Notice of Claim had been served upon HHC within 90 days, and that she had complied with the other conditions for commencing suit, including appearing at a Section 50-h hearing and commencing the action within one year and 90 days after the accrual. The defendant, HHC, denied those allegations except admitted that plaintiff had served a Notice of Claim on the Comptroller of the City of New York, and that a hearing was held pursuant to Section 50-h. In February 2003, almost four years after the treatment took place, plaintiff filed a note of issue. The defendant, HHC, moved to dismiss the complaint on the ground that a timely Notice of Claim had not been served on the Health and Hospitals Corporation. It also alleged that the time to seek leave to serve a late Notice of Claim had expired in February 2001, one year and 90 days after the last date of treatment. The Supreme Court granted the motion and dismissed the complaint. The Appellate Division, Second Department, affirmed the dismissal. The Court of Appeals agreed and affirmed the dismissal!

The Court of Appeals reviewed the legislative provisions which govern the commencement of most actions against municipal entities. Section 7401 of the Unconsolidated Laws of the State of New York addresses filing an action against the Health and Hospitals Corporation within one year and 90 days, and the filing of a Notice of Claim with “a director or officer” of the New York City Health and Hospitals Corporation within 90 days after the accrual of the cause of action. The Court noted that although the statute refers to a notice of intention to commence an action, that phrase has been used interchangeably with Notice of Claim terminology. It also noted that Section 7401 defers to the requirements of General Municipal Law Section 50-e, and authorizes the examination of the claimant pursuant to General Municipal Law Section 50-h. Section 50-e requires that the Notice of Claim be served against a public corporation by delivering the Notice of Claim personally or by registered or certified mail to the “person designated by law to accept that service or to the attorney regularly engaged in representing such public corporation.” The Court also noted that there is a savings provision in Section 50-e which deems a Notice of Claim to be timely served if the public corporation demands an examination of the person making the claim, or if the notice is actually received by the proper person within 90 days after the claim arises, and the claim is not returned with a specification of the defects in the manner of service within thirty days after the notice is received.

Noting that the City and New York City Health and Hospitals Corporation are separate entitles, and that the savings provision was meant to cure improper methods of service but not service on the “wrong public entity,” the Court of Appeals rejected the plaintiff’s argument. It held that the savings clause of Section 50-e did not apply, since service was not effected upon someone authorized to receive such notice. Here, “the proper -- and different -- party was HHC” and not the City of New York. Plaintiff was put on notice that HHC had objected to service and nonetheless failed to seek leave to file a late Notice of Claim before the expiration of the one year and 90-day statute of limitations. The Court of Appeals held that even if the Comptroller of the City of New York participates in a Section 50-h hearing in a claim against the New York City Health and Hospitals Corporation, such conduct does not cure the defect of invalid service on an improper party.

iii. The Department of Education

As mentioned above, Mayor Bloomberg had promised reform of the Board of Education and set about to dissolve that entity and have the management and control of the public school system in the City of New York placed under his control and supervision with the creation of a new “Department of Education.” A new department was created and housed literally right at the Mayor’s doorstep and subject to the mayor’s policy determinations on all aspects of public education. The dissolution of the Board of Education and the creation of a new Department of Education was hailed as an innovative approach. The creation of the department under the direct control and supervision of the Mayor was claimed to be a needed reform to get the public school system up to par.

As with most departments or agencies of a municipality, it is simply not necessary to name the department or agency in the Notice of Claim or to separately commence an action against the agency or department. Thus, negligence by an employee of the Department of Sanitation, or a defective condition in a police department facility, would be addressed simply by serving a Notice of Claim upon the City of New York and commencing an action, after the statutory conditions precedent were met, against the City of New York. It seemed logical to conclude, therefore, that with the creation of this new Department of Education and the dissolution of the Board of Education that such a practice could be followed here as well.

But, you would be wrong if you made that assumption. The Appellate Division, First Department, has held in Perez v. City of New York, 41 A.D.3d 378, 837 N.Y.S.2d 571 (1^st Dep’t 2007) that the Department of Education is a separate entity. Thus, like the Board of Education before it, you must serve a Notice of Claim upon it, abide by all rules of §50-e, §50-h and §50-i with regard to the manner of service, hearing requirements and limitation periods. And, you must therefore name it as a separate defendant with the City of New York in your complaint. See also, Myers v. City of New York, 64 A.D.3d 546, 882 N.Y.S.2d 306 (2d Dep’t 2009).

I also suggest naming the Board of Education in both the Notice of Claim and serving the Notice of Claim and Complaint upon the Board of Education. I had previously suggested that, in matters in which the “Department of Education” or its facilities or employees are involved, the “Department of Education” be named with the City of New York in a Notice of Claim and Complaint, and that the Notice of Claim and complaint be served on the Department of Education and upon the Office of the Corporation Counsel and the Office of the Comptroller. I get plenty of calls now from worried attorneys on what to do. After you call your legal malpractice carrier, if time is left in the statute of limitations, consider a motion for a late Notice of Claim and file the Complaint while the motion is pending. You can argue the confusion in the law as an excuse for the delay and the lack of prejudice to the City/Board/Department. But keep your fingers crossed. Because there is no guarantee. See, e.g., Nacipucha v. City of New York, 18 Misc.3d 846, 849 N.Y.S.2d 414 (Sup. Ct., Bronx County 2003)(Victor, J.)

See also, Herrera v. Duncan, 13 A.D.2d 485, 787 N.Y.S.2d 88 (2d Dept’ 2004)(serving agency of municipality not proper), discussed below.

The Notice of Claim

i. A Condition Precedent

Before proceeding with a claim against a municipality, a legal document known as the "Notice of Claim" must be presented. The Notice of Claim is, in fact, a condition precedent to the presentation of any claim. With regard to a claim against a municipality such as the City of New York, the provisions of Section 50-e of the General Municipal Law (GML) control. That section generally states that as a condition precedent to commencing a lawsuit against the municipality, the plaintiff must file a Notice of Claim within 90 days after the date of the occurrence. So, you don’t count the day of the incident; but the 90 days after accrual includes every weekday, weekend and holiday. §50(e)(1)(a).

For wrongful death actions, the ninety days starts from the appointment of the administrator. §50(e)(1)(a). But, don’t be fooled – your conscious pain and suffering claim is distinct from wrongful death and you cannot wait for the appointment to preserve that claim, since some Surrogate’s Courts are slow in processing your application and the Statute of Limitations is only one year and 90 days for the pain and suffering claim. If it looks like you will be delayed, file the Notice of Claim on behalf of the proposed representative. You can always amend later when the appointment is completed. See, Yoo v. New York City HHC, 239 A.D.2d 267, 657 N.Y.S.2d 189 (1^st Dep’t 1997).

ii. Wrongful Death and Pain and Suffering

McKune v. City of New York, 19 A.D.3d 308, 799 N.Y.S.2d 25 (1^st Dep’t 2005) highlights the problems that you can get into if you wait too long to serve your Notice of Claim because an Administrator needs to be appointed in a wrongful death action. Here, the plaintiff was the Administratrix of the Estate of the decedent. The decedent was being transported on a Department of Corrections bus between criminal court and Riker’s Island. She began to show signs of physical distress and medical treatment was provided. When plaintiff arrived at Riker’s Island she was found dead. The process to obtain Letters of Administration took almost two years to complete. Finally, on August 16, 2001, Letters of Administration were issued -- less than thirty days prior to the expiration of the two-year statute of limitations for wrongful death. (That is the statute for wrongful death claims even against the City of New York.) Prior to that time, in April 2001, plaintiff moved as the “prospective Administratix” for an Order granting leave to file a late Notice of Claim. Plaintiff annexed a Notice of Claim dated April 18, 2001 which was not verified by the petitioner. The Notice of Claim was also not served on the City Comptroller. However, on August 21, 2001, five days after being appointed Administratrix, plaintiff filed and served a Summons and Complaint asserting causes of action for conscious pain and suffering and wrongful death. Plaintiff also served upon the Comptroller of the City of New York a Notice of Claim entitled “Amended Notice of Claim” which was dated April 18, 2001 and which was verified by the plaintiff on April 24, 2001. The City of New York moved to dismiss the complaint on the ground that thirty days had not elapsed between the service of the Notice of Claim and the filing of the complaint as required under General Municipal Law §50-i. The motion court granted the motion and dismissed the complaint since the Notice of Claim was not properly served, not timely served, not in proper form and served in such a way that service deprived the City of its thirty day period for resolution of the claim prior to the filing of a complaint. The Appellate Division, First Department, modified the order. It agreed that the first Notice of Claim was unverified and was neither properly served nor specific. The Notice of Claim that was dated April 18, 2001 was also not properly served and not verified. And, the Court also agreed that the complaint was properly dismissed since it did not comply with the requisite 30-day waiting period provided under §50-i. However, because allowing the 30 day period to elapse would have caused the plaintiff to file the complaint outside the two-year period, the Court, as a matter of law, deemed the dismissal of the plaintiff’s complaint by the lower Court “to be without prejudice, so that plaintiff may commence a new action, based on the same underlying transaction, within the time limits set forth in CPL 205(a).” In other words, the First Department was in a giving mood on the day this decision was rendered. In a footnote the Court notes that the claim for conscious pain and suffering contained in the complaint was “voluntarily withdrawn by plaintiff”. It had to be. The statute of limitations for pain and suffering remains one year and ninety days even though the wrongful death cause of action is two years. Thus, when the plaintiff finally got around to serving the Notice of Claim in April 2001, the statute of limitations for that claim had already expired. The Court did not discuss any issues regarding prejudice in the delay in filing the Notice of Claim or the inadequacy of the Notice of Claim that was served upon the City -- which is and remained a condition precedent to the filing of the complaint. And, it would be curious to see what happens down the road when the issues regarding the lack of specificity and improper service of the Notice of Claim are not resolved by motion -- the result of which is not set forth in this decision -- since the City can always challenge the adequacy of the Notice of Claim even at the time of trial since it remained a condition precedent to commencing a claim against the City.

Consider the plaintiff’s predicament in Miller v. County of Sullivan, 36 A.D.3d 994, 827 N.Y.S.2d 750 (3d Dep’t 2007). This case should highlight for you the urgency with which you should proceed in having an appointment of an administrator for an estate in a wrongful death action to avoid having the statute of limitations expire on the underlying cause of action for pain and suffering. Remember, they are distinct causes of action.

While the statute of limitations for a wrongful death claim is two years from the date of death (see GML §50-i; EPTL §5-4.1; Public Auth. Law §1212, §1226; and Unconsolidated Laws §7401(2)), even when a municipality is involved, the one year and ninety day limitation period still applies under General Municipal Law §50-e(1)(a) and §50-i for the conscious pain and suffering claim. Remember to assert both of them in your complaint and to serve a Notice of Claim which outlines both allegations. You must file the Notice of Claim within ninety days to protect the pain and suffering claim. If the claimant subsequently dies, you may always seek to amend the Notice of Claim to reflect that change in status. However, you must commence the lawsuit for pain and suffering within one year and ninety days of injury or it will be barred. So, if you are having difficulty having an appointment of an administrator during that one year and ninety day period, assuming the claimant has died during that time, you must take the necessary steps to go to the Surrogate’s Court and get emergency Letters of Administration to avoid having the statute expire on the pain and suffering cause of action.

In Miller, the administrator faced that very problem. The decedent was involved in a motorcycle accident on April 18, 2004. He died two weeks later on May 1, 2004. A Notice of Claim was filed timely in June 2004 for both the conscious pain and suffering and wrongful death causes of action. Thereafter, Letters of Administration were issued to the administrator on September 29, 2005, a Summons and Complaint was then served on the Town on December 20, 2005. The Town served its Answer, which included the affirmative defense of failure to serve a Notice of Claim. Plaintiffs then served a Notice of Claim on January 11, 2006 and also moved in the Supreme Court to strike the affirmative defense and for leave to file a late Notice of Claim on the Town. The Supreme Court denied plaintiff’s motion, in part because the statute of limitations had expired for the conscious pain and suffering cause of action. It also denied the application as it related to the death claim, noting the prejudice to the Town from the untimely notice. The Appellate Division affirms the Supreme Court’s decision to deny the application as it related to the pain and suffering claim, noting that General Municipal Law §50-e(1)(a) requires that notice of the claim shall be made within ninety days after accrual -- and that in death claims it is ninety days from the appointment of the representative. Here, since the Notice of Claim was not filed against the Town until after the one year and ninety day period had expired -- much less within ninety days -- the cause of action was time barred.

As for the wrongful death claim, the Court correctly notes that the ninety days upon which to serve a Notice of Claim commences upon the appointment of the representative pursuant to General Municipal Law §50-e(1)(a). However, note that you don’t have forever to do that since the statute of limitations on the claim for wrongful death still expires two years after the death under General Municipal Law §50-i(1). The Court notes that the appointment of the administrator was completed on September 29, 2005 -- still within the two-year limitations period. Plaintiff thereafter had ninety days to file a Notice of Claim on the death claim. Here, the application for leave to serve the Notice of Claim was made one month beyond the ninety-day period but still within the statute of limitations. The court finds that since the summons and complaint was served within ninety days of the appointment, the Town received actual knowledge of the essential facts underlying the claim in a timely manner. Thus, the Court holds that it was error to deny the application as it related to the wrongful death claim, and to rely upon the time frame that involved the period before the administration proceedings were completed -- especially where actual notice was received during the ninety-day period after appointment through service of the summons and complaint.

So just to review the procedural requirements here, plaintiff’s decedent was injured on April 18, 2004. He died on May 1, 2004. A Notice of Claim for the pain and suffering cause of action had to be made by July 19, 2004 (July 18, 2004 was a Sunday.) The complaint alleging the cause of action for conscious pain and suffering therefore would have to be filed by July 18, 2005. The death claim would have to be commenced by May 1, 2006 at the latest, with the Notice of Claim being filed ninety days after the appointment of the estate’s representative.

The lesson to be learned is not to wait for the appointment of the Administrator before serving the Notice of Claim. The Notice of Claim may be submitted on behalf of the Proposed Administrator and can always be amended later once the administration proceedings are completed. By serving the Notice of Claim for the proposed Administrator and by setting forth the specifics of the claim the City will have an adequate opportunity to investigate the claim, conduct its §50-h hearing and be placed on adequate notice of the substance of the allegations against it so as to avoid any future claim of prejudice. And, as happened to this plaintiff here, since the administration proceedings can drag on for some time, especially in certain Counties, you run the risk of waiting beyond the statute of limitations for the underlying claim for pain and suffering if you don’t get the appointment and file the summons and complaint within the one year and ninety day period. If you haven’t received the Letters of Administration within that period of time you can always seek emergency Letters from the Surrogate’s Court for purposes of tolling the statute.

iii. Timeliness

The ninety day period for serving the Notice of Claim goes by very quickly and it is easy to miss. If you don’t serve within that period, you will face the dire consequences of your error.

The day of the occurrence is excluded from the calculation. General Construction Law Section 20. See also General Municipal Law §50-e(1)(a)(“within ninety days after the claim arises”) If the last day falls on a Saturday, Sunday or public holiday, the first business day becomes the last day. General Construction Law Section 25a. Okay, now read these sections and see if you really want to wait until the last day! The failure to comply with this condition precedent is the basis for dismissal of the claim. Davidson v. Bronx Municipal Hospital, 101 A.D.2d 1034, 475 N.Y.S.2d 792 (1st Dep't 1982) aff'd, 64 N.Y.2d 59, 484 N.Y.S.2d 533 (1984). See also Searle v. City of New Rochelle, 293 A.D.2d 736, 742 N.Y.S.2d 314 (2d Dep't 2002) (claim dismissed where mold was present in 1995, but claim not filed until 1998 – claim accrues when injury is apparent, not when cause of injury is known). The municipality can assert the failure to comply at any time up to trial and need not raise the untimeliness of the claim as an affirmative defense to defeat a late claim. See, Kim L. v. Port Jervis City School District, 61 A.D.3d 825, 877 N.Y.S.2d 421 (2d Dep’t 2009); Taverna v. City of New York, 166 A.D.2d 314, 560 N.Y.S.2d 775 (1st Dep't 1990).

In Pierre v. City of New York, 22 A.D.3d 733, 804 N.Y.S.2d 365 (2d Dept 2005), the plaintiff had its claim dismissed on procedural errors in serving a Notice of Claim in a timely manner. The plaintiff failed to serve a Notice of Claim within ninety days as required under General Municipal Law §50-e. Again, the service of a Notice of Claim in that time frame is a condition precedent to commencing suit. Plaintiff thereafter served an untimely Notice of Claim without leave of Court. The Appellate Division, Second Department, held that the Notice of Claim was a nullity as a matter of law since plaintiff failed to move for leave to serve a Late Notice of Claim within the one year and ninety day statutory period for commencing an action.

In Wade v. New York City Health and Hospitals Corporation, 16 A.D.3d 677, 793 N.Y.S.2d 68 (2d Dep’t 2005) plaintiffs sought recovery for medical malpractice. The Supreme Court dismissed the complaint for failing to serve a timely notice of claim. It also denied the cross-motion to deem the notice of claim that had been served to be timely “nunc pro tunc.” The Appellate Division, Second Department, affirms the dismissal, noting that the defendant “was under no obligation to apprise the plaintiffs that their notice of claim had not been timely served upon it.” Any participation in the litigation process prior to moving to dismiss did not preclude the making of that motion, since a notice of claim is a condition precedent, and the failure to timely file it may be raised at any time prior to trial. Nor was there any showing that the municipal defendant misled or discouraged the party from serving a timely notice of claim.

In Clayton Industries, Inc. v. City of Newburgh, 17 A.D.3d 308, 792 N.Y.S.2d 587 (2d Dep’t 2005) plaintiff sought recovery for breach of contract against the City of Newburgh. However, plaintiff had not filed a Verified Notice of Claim prior to commencing the action. The Complaint also did not allege that a Notice of Claim had been served upon the defendant within three months after the accrual of the claim. Instead, the plaintiff served a Notice of Claim after the defendant had moved to dismiss the Complaint, without seeking leave of court to serve such a late Notice of Claim. The Court held, therefore, that the provisions of the City of Newburgh code with regard to the commencement of an action warranted the dismissal of the Complaint for failing to served a verified written Notice of Claim, which was a condition precedent to the commencement of an action. See also, Elliott v. County of Nassau, 53 A.D.3d 561, 862 N.Y.S.2d 90 (2d Dep’t 2008)(error of one day in Notice of Claim; Amended Notice without leave of court; case dismissed since timely claim with accurate information not served).

iv. Contents of the Notice

The purpose behind the Notice of Claim requirement ostensibly is to allow the municipality to investigate the claim while the information is still available and before witnesses depart or conditions change. See, Beary v. City of Rye, 44 N.Y.2d 398, 406 N.Y.S.2d 9 (1978). With regard to claims involving the New York City Transit Authority or the Manhattan and Bronx Surface Transit Operating Authority, the provisions for the Notice of Claim are set forth in the Public Authorities Law, Section 1212. Take a look also at Public Authorities Law Section 1276 for the MTA and its subsidiary corporations (LIRR, Metro North Railroad).

So, what is the municipality entitled to receive to “investigate” the claim? Section 50(e)(2) requires: (a) a notice in writing, which is (b) sworn to by or on behalf of the claimant. See Butler v. Town of Smithtown, 293 A.D.2d 696, 742 N.Y.S.2d 324 (2d Dep't 2002) (improper verification not fatal to claim). But see Long v. State of New York, 7 N.Y.3d 269 (2006)(§8-b of Court of Claims Act specifically requires claimant to verify unjust conviction claim, not attorney -- defective verification fatal to claim.) The Notice shall contain:

1. The name and address of each claimant. (Don’t forget the spouse on the derivative claim or the parent in the infant’s claim);

2. The name and address of counsel;

3. The nature of the claim (is it a trip and fall; a police action; medical malpractice; roadway defect). This is important to avoid the claims of lack of “specificity”. The courts need to see the “buzz words”. So, be cautious in the use of terms. For example, don’t say the patient slipped and fell if you are referring to a trip over a broken sidewalk;

4. The time when the event occurred (“approximately”);

5. The place where the event occurred;

6. The manner or way that the event occurred;

7. The items of damage or injuries claimed. Note that for municipalities under one million in population you are not supposed to state an amount. They are supposed to request a supplemental claim for damages. CPLR §3017(c) goes even further since it applies to all municipalities regardless of population size. Again, it tells us not to state a dollar amount.

See Baker v. Town of Niskayuna, 69 A.D.3d 1016, 891 N.Y.S.2d 749 (3d Dep’t 2010)(failure to list Labor Law sections in Notice of Claim not fatal where claimant gave date, time and location of the accident).

A letter is not the recommended form for the Notice of Claim. Consider the blunders by the plaintiff in Rosenbaum v. City of New York, 8 N.Y.3d 1, 828 N.Y.S.2d 228 (2006). There, a property owner was involved in a dispute with the City of New York over property liens that had consumed years of procedural wrangling. Plaintiff had retained an attorney who was in regular correspondence with counsel for the Department of Housing, Preservation and Development, the agency involved in the property dispute. The correspondence expressed various claims and the willingness to resolve those matters, setting forth the explanation for the underlying dispute. Plaintiff and his attorney had met with representatives of HPD, including the attorneys who had been involved in the prior discussions. Further correspondence followed, including a demand that unless the liens were removed, that counsel would have “no choice but to direct my client to commence an action not only to discharge same, but for all damages,” including counsel fees and punitive damages for the City’s punitive refusal to comply with the law. And, for emphasis, the attorney warned the City to “be guided accordingly”. When HPD did not respond to the blunt exchange by plaintiff’s counsel, a suit was commenced to discharge the liens and for damages for “slander of title.” Three months later plaintiff served a Notice of Claim with the Comptroller of the City of New York setting forth the allegations regarding the wrongful assessment of liens against the property and alleging that the cause of action arose “on December 16, 1994 and was continuing.” Years later plaintiff moved for summary judgment to discharge the liens and the City cross-moved for summary judgment dismissing the complaint. Those motions and the decisions which followed ultimately reached the Court of Appeals, which in a prior decision, granted partial summary judgment to discharge the liens and to return the claim for slander of title to the Supreme Court for trial. Then, in 2004 -- 10 years after the litigation started -- the City again moved to dismiss, this time on the ground that the Notice of Claim had not been timely filed. Plaintiff had responded by arguing that the letters exchanged with the City of New York and warning them of the potential for future litigation were sufficient to satisfy the Notice of Claim requirements. The Court of Appeals warned that the claim requirements of General Municipal §50-e(2) are quite specific: (1) verification by or on behalf of the claimant; (2) the name and post office address of each claimant and attorney, if any; (3) the nature of the claim; (4) the time when, the place and the manner in which the claim arose; and (5) the items of damages or injuries claimed to have been sustained. The Court concluded that the letters sent by counsel, including the August 18, 1994 letter relied upon here was “not a valid Notice of Claim”. It did not alert its recipient to the imminence of litigation, or adequately describe the damages or when they allegedly occurred. Case dismissed. While I do not recommend “Bloomberg” forms, even they would have avoided the result here.

It’s not that hard to get it right, either. In Bennett v. New York City Transit Authority, 3 N.Y.2d 745, 787 N.Y.S.2d 711 (2004), the Court of Appeals found that a Notice of Claim was sufficient to apprise the defendant, New York City Transit Authority, of the nature of the claim to permit an adequate investigation. Plaintiff had slipped on a subway platform that was described as being “slippery and defective” from the inappropriate installation of tile. Plaintiff testified at a hearing and was not asked anything about the source of the wetness. Later, a Bill of Particulars was served which indicated that the defendant was negligent for causing leaks to exist at the station. While the plaintiff claimed that there was a large accumulation of water, a witness for the defendant had claimed that the area was dry and clean. The Appellate Division, First Department had nonetheless held, in reversing the Supreme Court’s dismissal of the Complaint, that the Notice of Claim, coupled with opportunity to conduct further inquiry into the matter at the General Municipal Section 50-h hearing, was in fact sufficient to permit the defendant to investigate the allegations and to determine the source of the water on the subway floor.

The Court of Appeals affirmed and held that the Notice of Claim provided the “place, time and nature” of the accident, and permitted the defendant a sufficient opportunity to investigate, collect evidence and evaluate the merits of the claim.

But see, Parker-Cherry v. New York City Housing Authority, 62 A.D.3d 845, 878 N.Y.S.2d 790 (2d Dep’t 2009)(inconsistency between notice of claim and §50-h hearing as to cause of fall warrants dismissal of claim.)

And, be wary of sharp tactics which may lull you into a disaster. In Goodwin v. New York City Housing Authority, 834 N.Y.S.2d 181 (1^st Dep’t 2007), the claimant alleged that he was injured after falling down a flight of stairs on the premises of the defendant which rendered him a paraplegic. Plaintiff timely served a Notice of Claim on the defendants within the statutory ninety day period under General Municipal Law §50-e. Plaintiff claimed that the accident occurred on October 14, 2002 between 7:00 and 7:30 p.m. at that “St. Mary’s Projects, 665 Westchester Avenue, Bronx, New York.” The claimant set forth that while walking down the steps from the 10^th to the 9^th floor in Exit B staircase he fell at the landing of the 9^th floor. Thereafter, approximately three weeks after the Notice of Claim was filed and “one day after the ninety day Notice of Claim period expired” the defendant, NYCHA, advised the plaintiff that it was rejecting the Notice of Claim because it did not particularly describe the alleged negligence. The letter to the plaintiff further claimed that “NYCHA is severely prejudiced as it cannot conduct the proper investigation and otherwise assess the merits of the claim”. After receiving the letter, plaintiff provided those particulars to NYCHA by filing another Notice of Claim, and elaborated on the manner in which the accident happened. NCYHA did not respond. NYCHA also did not request or hold a §50-h hearing. Thereafter, plaintiff commenced the action within one year and ninety days of the occurrence. NYCHA did not raise any affirmative defense with regard to the deficiency of the Notice of Claim. However, shortly after the two year anniversary of the accident, NYCHA moved for summary judgment and alleged that the “first Notice of Claim was defective in that it failed to provide adequate information to NYCHA for investigation”; and that the plaintiff’s correction, which NYCHA deemed to be a second Notice of Claim, was untimely since it arrived seventeen days after the ninety day period had expired. The Appellate Division, First Department, expressed its annoyance at the NYCHA strategy, highlighted by this summary of NYCHA’s tactics: “NYCHA follows up its one two punch with its knockout contention that the plaintiff was now barred from looking for leave from the Court to serve a late Notice of Claim because the statute of limitations had expired. For good measure, NYCHA pointed out that if the plaintiff had moved for leave to file a late Notice of Claim before the statute of limitations expired, leave would undoubtedly have been granted by the Court.” Noting that the “motion Court agreed with NYCHA”, the Appellate Division states succinctly “we do not agree” and reinstates the complaint. It concludes that the correction served by the plaintiff was not a second Notice of Claim but rather an amendment of a “timely Notice of Claim without prejudice to NYCHA.” The Court then engages in a very nice review of the requirements of the General Municipal Law §50-e and the need to apply its provisions “flexibly”. Here, “the facts of this case warranted an exercise of discretion by the motion court to allow a nunc pro tunc correction of a good faith error, which correction was made in such timely fashion that, as a matter of law, it could not have prejudiced the defendant.” Indeed, it chastises NYCHA for attempting to characterize the correction as a new Notice of Claims and refers to that attempt as “disingenuous”. The Court goes on to determine that the initial Notice of Claim was not “substantively and fatally defective.” Instead, it finds that the first Notice of Claim was appropriate since it made very clear that the action was “for personal injuries” and that “negligence was the only theory of liability implied by the plaintiff.” Referring to a decision by Judge Cardozo in 1931, the Court cites approvingly to his statement that “’what satisfies the statute is not knowledge of the wrong. What the statute exacts is notice of the claim’.” And, since the purpose of the Notice of Claim is to give a municipal authority the opportunity to investigate, NYCHA had every opportunity to do so since it had all of the information it needed seventeen days after the ninety day statutory period had expired. Thus, the Court concludes that “NYCHA’s claims of being prejudiced ring hollow.” The Court goes on to state that NYCHA has an obligation to obtain the missing information with “a modicum of effort” rather than simply rejecting the Notice of Claim “outright”. Here, however, NYCHA did not have to make any effort “whatsoever” since the plaintiff supplemented the information within seventeen days of the request.

But take a look at Lepkowski v. State of New York, 1 N.Y.3d 2001, 770 N.Y.S.2d 696 (2003), where the Court of Appeals dismissed a claim because the Notice of Claim did not comply with the similar requirements of Section 11(b) of the Court of Claims Act. It involved a claim for lost benefits and overtime over a long -- but unspecified -- period.

And, the plaintiffs in Varsity Transit, Inc. v. Board of Education of the City of New York, 5 N.Y.3d 532, 806 N.Y.S.2d 457 (2005) could not have predicted the need to repeatedly file notices of claim during a dispute over ongoing payments. Various bus service providers who had contracted with the New York City Board of Education (Department of Education) sought to recover for breach of contract when the Board/Department failed to pay for certain increases in the cost of providing benefits to bus monitors who supervised the children on the buses. They initially commenced the litigation process by filing a Notice of Claim in which they alleged that the Board/Department had misapplied the formula and had only paid the companies during 1995 and 1996 and the initial period of 1996 and 1997. The litigation moved through the Supreme Court and in July 2001 (about five years after the start of the lawsuit) the bus companies moved for summary judgment on the initial claims and also sought leave to serve and file a Supplemental Amended Complaint to update their claim for damages for the succeeding years because of the continuing disputes that involved the litigants. The Court of Appeals held that since companies “failed to continue to file new Notices of Claim every three months during the litigation to cover the ongoing underpayments” they could not simply amend the Complaint to seek recovery for those payments as well. Instead, the failure to file a Notice of Claim every three months for the underpayments was fatal to any claim for the ongoing loss. Thus, “future plaintiffs, after starting the lawsuit, need only continue to file the Notice of Claim that they have filed before the lawsuit.” Justifying its conclusion on the need to have strict application of Notice of Claim requirements, the court added that filing Notices of Claim every three months is “not overly burdensome on plaintiffs and avoids any possible confusion about which acts of the government the plaintiffs find unlawful.”

The Court of Appeals found in C.S.A. Contracting Corp. v. New York City School Construction Authority, 5 N.Y.3d 189, 800 N.Y.S.2d 123 (2005) that although a contractor had no reason to expect that there would be a dispute over the payments due, it should have anticipated a dispute anyway, and the failure to file a Notice of Claim within the statutory three month period was fatal. In 1993, the plaintiff, C.S.A. Contracting Corp. entered into a contract with the New York City School Construction Authority (CSA) for asbestos abatement at public schools, including P.S. 29 on Staten Island. On December 3, 1993, the contractor submitted a request for payment for additional work done at P.S. 29. The SCA approved the request in February 1994 but in April 1994 informed the contractor that it would not pay for the additional work since it alleged that the contractor had overcharged on a different school project. Thus, on May 9, 1994 the contractor served a Notice of Claim on SCA seeking recovery for the outstanding work. Plaintiff submitted a new Notice of Claim dated September 21, 1994 which sought damages for three specific areas of work that had been performed. Ultimately, the contractor commenced a breach of contract action in April 1995. At trial, the plaintiff’s claim was dismissed by the trial court because it did not submit a Notice of Claim within three months of the “accrual” of its claim. The Appellate Division, Second Department, affirmed the dismissal. The Court of Appeals held that the Complaint must be dismissed because the plaintiff failed to serve a Notice of Claim within three months of the “accrual” of the cause of action. It relied upon §1744(2) of the Public Authorities Law which required that a Verified Notice of Claim be submitted within “three months after the accrual of such claim”. The Court of Appeals determined that in contractor claims such as this the “accrual” occurs when a contractor’s damages are ascertainable -- which means once the work is substantially “completed”. Since the contractor’s work was done in December 1993 the Court finds that, as a matter of law, all claims accrued by the end of 1993. Thus, the plaintiff was required to serve a Notice of Claim by the end of March 1994. In noting that the Education Law was amended to find the accrual as of the time that the claim was denied, specifically to avoid this anomaly, the Court of Appeals, however, found that it could not do so since the legislature has yet to amend the Public Authorities Law.

What if you forget something? You may always seek leave to serve an amended Notice at any time and at any stage of an action if there is a mistake, omission, irregularity or defect made in good faith, and if there is no prejudice to the municipality. This specifically does not include mistakes, omissions or defects regarding the manner of service or the time of service.

Keep in mind an important decision by the Court of Appeals in Brown v. City of New York, 95 N.Y.2d 389, 718 N.Y.S.2d 4 (2000). There, the plaintiff had filed a notice of claim regarding a trip and fall on a New York City sidewalk. The Notice of Claim, however, referred to the fact that he tripped on a defective portion of sidewalk and curb. He submitted detailed measurements of the location in the Notice of Claim. He also attached photographs of the scene, which circled the area around the curb, which included a small portion of sidewalk as well. He also testified at a Section 50(h) hearing that he tripped on a defective sidewalk. The jury found specifically that plaintiff had fallen on the sidewalk. The evidence showed prior notice of the sidewalk but not the curb. Motion to set aside the verdict granted by the trial court on the ground that the Notice of Claim was defective since it referred to both sidewalk and curb! The Appellate Division, Second Department, affirmed the dismissal and agreed that the Notice of Claim was deficient.

The Court of Appeals, in a nice review of the law applicable to Notice of Claim requirements, reversed the Appellate Division. It noted that Section 50(e) does not require “literal nicety or exactness”, but rather sufficient information to investigate. Given that the notice here gave the location, included photographs and referred to a defective sidewalk four times, the Notice was sufficient to allow the City to investigate the claim.

The lesson to be learned from Brown is clear: Be careful about the language used to describe the location and manner in which the accident happened. Don’t hedge your bets – by referring to sidewalk and curb or by circling a photograph without a reference point. You will have plenty of time at later proceedings to have your client mark a photograph in the context of recorded testimony to avoid any mistake on the specifics of that occurrence.

See, Pelaez v. City of New York, 2010 NY Slip Op 09900 (2d Dept 2010)(wrong address in Notice of Claim warrants denial of leave to amend and dismissal of complaint); Shpack v. New York City Transit Authority, 292 A.D.2d 590, 740 N.Y.S.2d 92 (2d Dep’t 2002), where plaintiff’s complaint was dismissed because the Notice of Claim did not list a specific location; the testimony at the Section 50-h did not clarify the location; and a supplemental bill of particulars gave a completely different location than generally described in the Notice of Claim, Complaint and Bill of Particulars; and Rivera v. City of New York, 303 A.D.2d 318, 757 N.Y.S.2d 273 (1^st Dep’t 2003) where the complaint was dismissed because the Notice of Claim gave measurements for the wrong location and never corrected the mistake despite the testimony at the 50(h) which highlighted the confusion, and plaintiff’s Bill of Particulars simply repeated the same error.

But see Smith v. State of New York, 55 A.D.3d 430, 866 N.Y.S.2d 70 (1^st Dept 2008)(by attaching copy of decision in underlying criminal matter, claimant satisfied all elements of unjust conviction in Notice of Claim); Ramos v. New York City Transit Authority, ___ A.D.3d ___, ___ N.Y.S.2d ___ (2009 NY Slip Op. 01912)(1^st Dep’t 2009)(where plaintiff was granted leave to amend the original Notice of Claim to allege a wrongful death claim after the two year limitation period because the original notice was timely and the complaint alleging both pain and suffering was timely).

Service Requirements

When dealing with the different municipalities throughout the state, care should be taken to serve the Notice of Claim on the appropriate agency responsible for processing it. Within the City of New York, a Notice of Claim should be served on the Corporation Counsel’s office at 100 Church Street, New York, New York, and upon the Comptroller's Office, at One Centre Street, New York, New York. Claims against the New York City Transit Authority should be served at the headquarters at 130 Livingston Street, Brooklyn, New York, and upon its counsel at the same location. The New York City Health and Hospitals Corporation, which is a separate legal entity, must be separately served at its headquarters at 125 Worth Street, New York, New York. Similarly, the New York City Housing Authority should be separately served at its headquarters at 250 Broadway, New York, New York. While service by registered mail is permitted under Section 50-e(3)(b), personal service is the better choice. And always get a stamped copy for your files.

Don’t take shortcuts on service as evidenced by Viruet v. City of New York, 97 N.Y.2d 171, 738 N.Y.S.2d 2 (2001), discussed more fully, infra, where counsel didn’t sue HHC but did serve the Notice of Claim on the Office of the Corporation Counsel. Viruet recognized that the corporation counsel was the attorney regularly engaged in representing the Health and Hospitals Corporation and excused the lack of service directly on the entity itself, which saved plaintiff. In Scantlebury, however, plaintiff never attempted service on either the Health and Hospitals Corporation or the corporation counsel’s office. But, be mindful of the fact that since Viruet, the HHC has set up its own in-house legal unit -- lawyers who were shifted from the Corporation Counsel’s office. So, if you serve the Corporation Counsel instead of HHC, you will have improperly served the entity.

Take a look also at Santiago v. Santana, 8 A.D.3d 650, 779 N.Y.S.2d 554 (2d Dep’t 2004) where plaintiff was confronted with the confusing world of franchised bus lines which often have the same Notice of Claim requirements as the public authority which issues the license to operate. Plaintiff was injured when he was stuck by a bus operated by Liberty Lines Transit. However, the bus is owned by the County of Westchester. Within 90 days of the accident, plaintiff served a Notice of Claim on the “Westchester County Department of Transportation”. The Notice was then forwarded to the attorneys for Liberty Lines and its bus driver. During settlement negotiations, counsel for Liberty Lines advised plaintiff’s counsel that the Notice of Claim was defective because it was not served on the proper person under General Municipal Law Section 50-e(3)(a). Plaintiff moved to have the original Notice of Claim deemed properly served on Liberty Lines, the bus driver, and the County. The Supreme Court denied the motion on the ground that the plaintiff could not proceed by motion, but was required to commence a special proceeding, since the County was not a party to the action. The Appellate Division reversed and held that plaintiff did not have to proceed by special proceeding on the issue of the service of the Notice of Claim. The Court further held since the County was obligated to indemnify Liberty Lines, it should have been served with a Notice of Claim. Even though plaintiff did not serve the Notice of Claim on the proper person under the General Municipal Law, nonetheless, it was actually received by defendant’s counsel, which was the firm regularly engaged in representing the County. Since counsel received it within the time specified by the statute, and the County failed to properly reject the Notice within 30 days, the Court deemed that the Notice was properly served on the County.

Here’s some others to consider: In Gonzalez v. Board of Education of the City of Yonkers, 298 A.D.2d 358, 751 N.Y.S.2d 256 (2d Dep’t 2002), the plaintiff was injured after falling on stairs inside a school. Plaintiff claimed that the step had a “metal slippery condition” which was described as a worn metal strip affixed to the edge of the steps. No expert proof was submitted. Instead, plaintiff relied on photographs to show that the metal strips were worn down and sloped downward on one step. The defendant moved for summary judgment to dismiss the complaint on the ground that the Notice of Claim was untimely. The Appellate Division agreed with the lower court that the Notice of Claim was timely served, since it was sent by certified mail on the 90^th day following the date of accident. The fact that the defendant did not receive it until one month later was not dispositive of the timeliness of the Notice. The Appellate Division, however, reversed the denial of summary judgment and dismissed the complaint, since it found that the staircase was free of actionable defects, as a matter of law. It held that the worn condition of the strips at the edges of the steps were not the basis for liability, and the photographs that were submitted did not show any actionable defects for which liability could be imposed.

And, in Jones v. City of New York, 300 A.D.2d 359, 751 N.Y.S.2d 522 (2d Dep’t 2002), a medical malpractice action, the plaintiffs served a letter upon the defendant, Health and Hospitals Corporation, by ordinary mail. The Appellate Division agreed with the Supreme Court in dismissing the complaint, in that a letter sent by ordinary mail was not a valid Notice of Claim. The letter was not verified, it did not set forth the nature of the medical malpractice, and it was not served personally or by registered or certified mail, as required by the General Municipal Law Section 50-e(3). Finally, since the application to serve a late Notice of Claim was made beyond the two-year statute of limitations for commencement of a wrongful death action against the Health and Hospital Corporations, the Court lacked any discretion to consider the petition.

Please, avoid these pitfalls by serving the entity, the comptroller, and the corporation counsel which represents that entity. Remember, service is free! And I strongly discourage any service other than personal service which gives you a date and time stamped copy of the document.

If you insist on mailing a Notice of Claim, at least don’t send it to the wrong address as the plaintiffs in Alston v. Avrasano, 24 A.D.3d 399, 805 N.Y.S.2d 117 (2d Dep’t 2005) did. The plaintiff wanted to commence an action against the Metropolitan Transportation Authority and the New York City Transit Authority. In attempting to do so, the plaintiff mailed the Notice of Claim to an incorrect address. Thereafter, plaintiff sought to cure the defect by serving the Notice of Claim at the correct address, but unfortunately did so outside the statutory period of one year and ninety days. The Appellate Division, Second Department, affirmed the dismissal of the complaint, finding that the mailing to an incorrect address was improper since the Notice was not actually received by a proper party under General Municipal Law §50-e. Moreover, since the plaintiff failed to move for leave to serve a late Notice of Claim within one year and ninety days, the service of the Notice of Claim was a nullity.

And, please, when you have to serve the Notice of Claim or the Petition for a late Notice of Claim, don’t rely on the postal service to do your job as the attorney did in Jagmohan v. City of New York, 14 A.D.3d 491, 788 N.Y.S.2d 165 (2d Dep’t 2005). Plaintiff sought leave to serve a late Notice of Claim. The motion court granted the motion, and upon reargument adhered to the prior determination. The Appellate Division, Second Department reverses, and dismisses the Complaint. It holds that the plaintiff “failed to timely serve the defendants with her motion for leave to serve a late Notice of Claim, since she mailed the motion papers to the Office of the Corporation Counsel at the wrong address” and therefore did not comply with CPLR Rule 2103(b)(2) which required the service upon an attorney “in a pending action” by mailing same to the attorney at the address designated for such service. Moreover, the Court found that the Office of the Corporation Counsel did not acquire actual notice of the motion until more than one year and 90 days after the cause of action had accrued. Thus, since the motion was made outside the time of the statute of limitations, the Supreme Court lacked authority to rule on the application.

And, remember you can’t serve the Notice of Claim or Complaint on an agency or department of the municipality because the agency or department is not the proper entity.

Consider Herrera v. Duncan, 13 A.D.2d 485, 787 N.Y.S.2d 88 (2d Dep’t 2004). Plaintiff was injured in an accident apparently involving a street defect. Plaintiff filed a Notice of Claim against the “New York City Department of Environmental Protection”. The City of New York moved to dismiss the Complaint for failure to timely file a Notice of Claim against the City of New York. The motion court denied the motion. The Appellate Division, Second Department reversed and dismissed the Complaint. The Court held that the plaintiff failed to timely file a Notice of Claim against the City of New York. Plaintiff could not demonstrate that the Notice of Claim was served upon either the Corporation Counsel or the Comptroller of the City of New York. Rather, plaintiff only served the Notice of Claim upon the New York City Department of Environmental Protection. The Court found that such service was not sufficient to meet plaintiff’s statutory obligation under General Municipal Law Section 50-e. The Court held that the New York City Department of Environmental Protection was not a “proper person” within the meaning of the statutory requirements, and the failure to serve the Notice of Claim on either the Corporation Counsel or the Comptroller within the 90 days specified within General Municipal Law Section 50-e(3) was fatal. Moreover, since plaintiff could not seek leave to file a late Notice of Claim within the applicable statute of limitations, the Court could not rectify the error. The Complaint, therefore, had to be dismissed. See also, Rosenbaum v. City of New York, 8 N.Y.3d 1, 828 N.Y.S.2d 228 (2006)(letters to Department of Housing, Preservation and development do not satisfy Notice of Claim requirements for claim against the City of New York). And, for all of you tech savvy individuals, an e-mail is not sufficient to constitute a Notice of Claim. See Gastman v. Department of Education of the City of New York, 60 A.D.3d 444, 874 N.Y.S.2d 459 (1^st Dep’t 2009), lv. denied, 2009 WL 1543995 (2009).

The Late Notice of Claim

i. General Requirements

In the unfortunate circumstance when a Notice of Claim cannot be filed within the statutory period of 90 days, application can be made to the Court for leave to file a late Notice of Claim. Section 50(e)(5). The basis for the motion will depend on the factual circumstances which would justify excusing the late filing. While the decisions are fact intensive, some general -- although often conflicting -- patterns have emerged to add life to a claim outside the 90-day window.

The case law is legion in this area and research should be conducted to find the relevant cases which would allow the filing of a late claim. The various factors usually considered in combination, are set forth in GML Section 50-e(5). Significant among the factors is actual knowledge of the underlying facts and the lack of substantial prejudice to the municipality. See, GML §50-e(5). See also, Allende v. City of New York, 69 A.D.3d 931, 894 N.Y.S.2d 472 (2d Dep’t 2010); Catuosco v. City of New York, 62 A.D.3d 995, 880 N.Y.S.2d 142 (2d Dep’t 2009). Other factors include:

(a) infancy (but see the harsh results in Plummer, infra; Williams, infra; Nieves v. Girimonte, 309 A.D.2d 753, 765 N.Y.S.2d 64 (2d Dep’t 2003) and Harris v. City of New York, 287 A.D.3d 473, 747 N.Y.S.2d 4 (1^st Dep’t 2002)

(b) mental or physical incapacity (you will need convincing medical proof if you rely on this. See, e.g., Savelli v. City of New York, 104 A.D.2d 943, 480 N.Y.S.2d 561 (2d Dep’t 1989) [quadriplegic]), Nunez v. City of New York, 307 A.D.2d 218, 762 N.Y.S.2d 384 (1^st Dep’t 2003) [developmentally disabled];

(d) reasonable reliance on settlement representations of the public corporation or its insurer;

(e) excusable error regarding the name of the public corporation.

A nice, concise discussion of the elements for a late Notice of Claim can be found in Conroy v. State of New York, 192 Misc.2d 71, 744 N.Y.S.2d 811 (Ct. Cl. 2002). See also Conroy v. Smithtown Central School District, 3 A.D.2d 492, 770 N.Y.S.2d 428 (2d Dep’t 2004).

Section 50(e)(5) even allows the motion to be made after the action was commenced. Absent one of these reasons (and many times with one) the Courts can be very strict in applying the rule. See Tom L. LaMere & Associates, Inc. v. City of Syracuse Board of Education,, 48 A.D.3d 1050, 851 N.Y.S.2d 752 (4^th Dep’t 2008)(dismissal warranted where Notice of Claim filed four days late); Riordan v. East Rochester Schools, 291 A.D.2d 922, 737 N.Y.S.2d 702 (4 Dep't 2002) (motion denied where Notice of Claim filed on day 96 – 6 days beyond the statutory deadline – where plaintiff had no basis for the delay).

You must seek leave from the Court in an actual motion, and cannot rely on the “wherefore” clause in a complaint. See, Kellogg v. Office of Chief Medical Examiner of the city of New York, 24 A.D.3d 376, 806 N.Y.S. 528 (1^st Dep’t 2005)(claimant served a Notice of Claim six months beyond the ninety day statutory period without leave of court; claimant then simply files the complaint without getting leave but seeks that relief in the wherefore clause -- dismissed).

And, if you are granted leave to serve a late notice, you must purchase a new index number when filing your summons and complaint. Trying to save a few bucks by using the same index number from the special proceeding for the complaint is not a good idea, says the Court in Harris v. Niagara Falls Board of Education, 6 N.Y.3d 155, 811 N.Y.S.2d 299 (2006), aff’g, 16 A.D.3d 1135, 792 N.Y.S.2d 746 (4^th Dep’t 2005). The plaintiff commenced a special proceeding seeking leave to serve a late Notice of Claim. Plaintiff purchased an index number with the Clerk of the Court and filed the application. The application was granted and plaintiff was given leave to file and serve a late Notice of Claim on the subject City. Thereafter, plaintiff retained different counsel who brought a second proceeding for leave to serve a late Notice of Claim against different entities. That counsel used the same index number from the earlier application. That counsel also used the same index number to commence the action against the parties against whom leave was given by the Supreme Court in response to the respective applications. The defendants attempted to capitalize on that failure to purchase a new index number and moved to dismiss the complaint once the statute of limitations had expired “claiming that plaintiff’s failure to purchase a new index number resulted in the action not having been properly commenced prior to expiration of the statute of limitations.” The motion was denied, but the Appellate Division reversed and dismissed the Complaint on the ground that the Supreme Court lacked “subject matter jurisdiction because the action was not properly commenced in the absence of a new index number.”

The Court of Appeals affirmed the dismissal “but for a different reason”. New York has adopted a “commencement-by-filing” system which requires the purchase of an index number from the Clerk of the Court under CPLR 304. Thus, in order to commence an action, and toll the statute of limitations, you must purchase an index number from the Clerk and file your complaint with the Court. (That wasn’t always the procedure. It used to be that you commenced your lawsuit against a party by serving the Summons and Complaint -- which led to all kinds of interesting issues at traverse hearings, a scenario that the commencement-by-filing system was designed to minimize, if not avoid in its entirety.) The Court reviewed its prior discussions on this topic and found that it has given ample warning to the Bar that there must be strict compliance with these procedural requirements. Thus, it concluded that where the defendant timely objects to the failure to follow the appropriate procedural mandates, the failure to purchase a new index number from the Clerk and to file the Summons and Complaint would result in the dismissal of the action. However, the defendant also bears the burden of respecting the procedural requirements of the Court. If the defense fails to object in a timely manner to the lapse by the plaintiff, then the defect in the filing is waived and will not result in dismissal. Thus, the Court holds that “a Court should dismiss an action or proceeding only where the plaintiff or petitioner does not fulfill all the filing requirements and the defendant or respondent timely objects.” It rejected the holding of the Supreme Court that it lacked “subject matter jurisdiction” in addressing the issue, but nonetheless finds that the infirmity was fatal here since the defendants did make a timely objection to plaintiff’s miscue.

What happens, though, if the plaintiff following dismissal seeks to recommence the action under the grace period provided by CPLR 205(a)? I assume by the court’s decision in Harris that if the defendant fails to object then the defect is waived and the action does not face dismissal. If, on the other hand, the defendant does object will the plaintiff get the benefit of the grace period for refilling under CPLR §205(a)? That all depends on how strict the Court will be in interpreting the language of CPLR §205(a) which places a clear limitation on its application by providing: “if an action is timely commenced”, then recommencement may be permitted for dismissals other than the enumerated scenarios.

And, in Allianz Insurance Company v. City of New York, 19 A.D.3d 159, 798 N.Y.S.2d 365 (1^st Dep’t 2005), an out-of-state attorney had sought leave to serve a late Notice of Claim. Counsel had purchased an index number for that application. That application was granted and plaintiff then served a summons and complaint bearing the same index number as had been issued for the late Notice of Claim application. The complaint was dismissed on motion by the City of New York on the ground that the action had never been properly filed and commenced. The Appellate Division, First Department, bails out the plaintiff here and reverses. It notes that the City of New York answered the complaint and never objected to the improper filing. Thus, the court obtained subject matter jurisdiction without objection, thereby curing the filing defect. It also noted that since the plaintiff was willing to pay a new filing fee, the court could properly exercise its discretion and permit a late filing since that was not viewed as the critical factor in a determination on jurisdiction.

A child enjoys the tolling provisions of CPLR Section 208. See, Henry v. City of New York, 94 N.Y.2d 275, 702 N.Y.S.2d 580 (1999); Cohen v. Pearl River Union Free School District, 51 N.Y.2d 256, 434 N.Y.S.2d 138 (1980).

But, take a look at what happened to the kid in Plummer v. New York City Health and Hospitals Corporation, 98 N.Y.2d 263, 746 N.Y.S.2d 647 (2002). The infant plaintiff was born in 1985 at the North Central Bronx Hospital, which was owned and operated by the New York City Health and Hospitals Corporation. He was born with severe brain damage and Erb’s Palsy. Thereafter, he was treated at various clinics, including North Central’s pediatric clinic for his Erb’s Palsy and for routine health care. The medical records indicated that the infant continued with routine medical treatment at the North Central clinic into the year 1990.

On October 18, 1990, a Notice of Claim was filed on behalf of the infant and his mother, claiming negligence and medical malpractice. A Complaint was served on November 13, 1991, claiming more specifically medical malpractice. Approximately eight years later, in August 1999, the defendant, HHC, moved for summary judgment on the ground that the plaintiff failed to serve a Notice of Claim within 90 days of the malpractice -- which, for all intents and purposes, was the May 21, 1985 birth date of the infant. Plaintiffs argued in opposition that, since there was continuous treatment at North Central for the injuries sustained during the delivery, namely the Erb’s Palsy, the Notice was timely.

The Supreme Court denied the motion to dismiss, holding that HHC was estopped from raising the untimeliness of the Notice of Claim, because it waited until the ten year statute of limitations had expired before it brought its motion. The Appellate Division affirmed on different grounds, holding that the limitations period was extended under the continuous treatment doctrine, since plaintiff was receiving treatment at the hospital for some of his birth injuries prior to the filing of the Notice of Claim.

The Court of Appeals reversed and held that the filing of the Notice of Claim, more than five years after the infant’s birth, was untimely. The Court held that the Notice had to be served within 90 days after the claim arose, which, in a malpractice case, would be on the date of the alleged wrongful act. While noting that the continuous treatment doctrine would toll the 90 day period for filing the Notice of Claim, the continuous treatment had to be for the same illness, injury or condition which arose from the original negligent act. It specifically noted that routine examinations or visits for unrelated matters do not fall within the ambit of continuous treatment. The Court also noted that since the plaintiff failed to keep some of the appointments for the Erb’s Palsy, and also had indicated a desire to move to Florida, those factors effectively broke any chain of continuity and created a gap of 16 months between routine visits. Thus, without a record to indicate regular treatment, the Court held that there was no continuous treatment. The Court, therefore, held that the Complaint should have been dismissed, since the Notice of Claim was untimely.

This case raises the question as to whether the entire issue would have been avoided if a motion had been made to permit a late Notice of Claim to be filed in October 1990, rather than simply filing the Notice of Claim. Certainly, the infant could not have taken any action on its behalf, and was relying upon a parent, and more importantly, counsel, to file the claim in a timely manner. The late Notice of Claim would have been made within the ten-year statute of limitations for infancy, and the questions regarding continuous treatment would have been less important. A harsh result for a child that probably could have been avoided. Notably, the Notice of Claim was also filed for the mother’s derivative cause of action, even though the statute of limitations on that claim expired one year and 90 days after the infant’s birth.

Another kid was out of luck where claimant waited ten years after the infant’s birth before seeking leave to file a late Notice of Claim. In Williams v. Nassau County Medical Center, 6 N.Y.3d 531, 814 N.Y.S.2d 580 (2006) plaintiff wanted to claim that the infant suffered epilepsy and developmental difficulties because of medical malpractice at birth. The infant was born in September 1993. Approximately five years after his birth, however, certain tests showed signs of brain abnormality. On September 5, 2003, “ten years after plaintiff’s birth”, plaintiffs’ counsel sent the hospital a Notice of Claim alleging malpractice. The Supreme Court granted leave to serve the late Notice of Claim. The Appellate Division, Second Department reversed and ruled that the petition should have been denied. The Court of Appeals now affirms and finds that none of the facts were present under General Municipal Law §50-e(5) for exercising the discretion and granting the application. Most importantly, the Court finds that the hospital records did not provide the defendants with actual knowledge of the essential facts constituting the claim. The Court rejected any argument that “merely having or creating hospital records, without more, does not establish actual knowledge of a potential injury where the medical records do not evince that the medical staff, by its acts or omissions, inflicted any injury on plaintiff during the birth process.” Since there was insufficient evidence in the chart to demonstrate injury at birth, plaintiff’s argument was unavailing here. The Court also found that the infancy of the child was not a reason for the delay and noted that “the history of §50-e(5) and the case law demonstrate that a nexus between infancy and delay, while not a requirement, remains a statutory factor that a Court should take into account.” 814 N.Y.S.2d at 583. Even though §50-e(5) was amended to eliminate any specific requirement of such a causal connection, a court may nonetheless examine the connection between the infancy and the delay as one of the factors to be considered in considering the application.

Finally, the Court finds that the ten-year delay would substantially prejudice the defendants. Here, given the Court’s determination that there was no actual knowledge of the underlying facts, the ten-year period was significant.

In conclusion, the court holds:

“In summary, the 1976 amendment to §50-e(5) de-emphasized the importance of a nexus between a plaintiff’s infancy and the delay in service of a Notice of Claim. The statute now contains a non-exhaustive list of factors that the court should weigh, and compels consideration of all relevant facts and circumstances. This approach provides flexibility for the courts and requires them to exercise discretion.”

See also, Bucknor v. New York City Health & Hospitals Corp., 44 A.D.3d 811, 844 N.Y.S.2d 100 (2d Dep’t 2007) (after reviewing the factors which would justify leave to serve a late Notice of Claim: (1) infancy; (2) reasonable excuse for a delay; (3) actual knowledge of the facts within ninety days of the occurrence; and (4) an absence of any substantial prejudice; the Appellate Division reversed the granting of leave to file a late Notice of Claim pursuant to General Municipal Law §50-3(5) where leave to serve late Notice of Claim made 10 years after malpractice occurred in child); Harris v. City of New York, 297 A.D.2d 473, 747 N.Y.S.2d 4 (1^st Dep’t 2002) (motion made four weeks beyond the 90-day period denied even though infant plaintiff could not file on its own; a harsh result according to the dissent). But see Tapia v New York City Health and Hospitals Corp., 27 A.D.3d 655, 811 N.Y.S.2d 768 (2d Dep’t 2006)(plaintiff sought leave to file late Notice of Claim nine years after birth resulting in Erb’s Palsy injury; motion should have been granted because infant’s claim is tolled for infancy for ten years under CPLR §208 and medical records did provide actual notice of claim).

Every now and then you can get lucky like the child in Pearson v. New York City Health and Hospitals Corp., 10 N.Y.3d 852,259 N.Y.S.2d 614, affg, 43 A.D.3d 92, 840 N.Y.S.2d 25 (1^st Dep’t 2007). Here is a situation where both the Appellate Division and the Court of Appeals apparently view kindly an infant plaintiff’s predicament and permit the late filing of a Notice of Claim some two years after the accrual of the claim. Plaintiff had attempted to serve a late Notice of Claim without leave of court some six months after the last appointment; technically, of course, a nullity. However, some two years later plaintiff sought leave to serve the late Notice of Claim and that application was granted. The Appellate Division affirmed on the ground that there was no prejudice shown by the defendant. The majority of the First Department was at least persuaded that the attempt to serve the late and unsanctioned, Notice of Claim, six months after the last visit, minimized any claim of prejudice. Plaintiff had no excuse for the delay in filing the earlier Notice, or in seeking leave. Even in the absence of any excuse for the delay, the Appellate Division held that defendant’s knowledge of the events could be ascertained from the records in its possession. The Appellate Division dissent stressed that the initial Notice of Claim could not be considered since it was procedurally a nullity. It argued that the lapse of time certainly would prejudice the HHC in defending the case since the mere possession of the records did not adequately apprise it of the basis for the claim against it. The Court of Appeals, however, agreed with the majority and held that “the courts below acted within their discretion in granting plaintiff’s motion for permission to serve a late Notice of Claim.” The unexcused delay was simply not sufficient to justify depriving, as the Appellate Division noted, the infant’s day in court. The court was apparently comforted by the idea that even unsanctioned service of a Notice of Claim was better than none, and the defendant could simply not claim prejudice when it had at least some knowledge of the events at some point after the ninety day period otherwise would have expired.

On another front, both the Appellate Division and the Court of Appeals were satisfied that a plaintiff in a lead poisoning case whose injuries could not be ascertained immediately, could voluntarily discontinue the claim without prejudice to renewal at a later date when the injuries became better understood.

I am always in favor of great latitude in consideration of an infant plaintiff’s claim since the children simply have no control over the events surrounding their care, treatment or – litigation. However, I do not suggest serving a late Notice of Claim without leave. If you feel that the Court of Appeals is suggesting in Pearson that such service can give you some latitude, then move immediately to have that unsanctioned Notice of Claim accepted by the court. And, if the plaintiff in Pearson were not an infant, I am not so confident that the Appellate Division or the Court of Appeals would have been so willing to accept the initially filed Notice of Claim as a basis for avoiding prejudice. And, unlike the decisions by the Court of Appeals, discussed above, in which an infant was denied the opportunity to seek leave, here at least the plaintiff’s application was done within two years of the event and not nine or ten years down the road.

If the statute of limitations has expired before the motion for the late Notice of Claim is presented the action would be time barred in any event and you can’t make the motion. See, §50-e(5); Heslin v. County of Greene, infra; Shahid v. City of New York, 50 A.D.3d 770, 855 N.Y.S.2d 612 (2d Dep’t 2008); Braun v. County of Orange, 31 A.D.3d 593, 819 N.Y.S.2d 296 (2d Dep’t 2006); Cruz v. City of New York, 302 A.D.2d 553, 755 N.Y.S.2d 416 (2d Dep’t 2003); Pierson v. City of New York, 56 N.Y.2d 950, 453 N.Y.S.2d 615 (1982); Hall v. City of New York, 1 A.D.3d 254, 768 N.Y.S.2d 2 (1^st Dep’t 2003); Santiago v. City of New York, 294 A.D.2d 483, 742 N.Y.S.2d 566 (2d Dep’t 2002). See also, Cruz v. City of New York, 302 A.D.2d 553, 755 N.Y.S.2d 416 (2d Dep’t 2003) (claim timely filed for injured husband. However, because claim for wife not timely filed on derivative claim, motion for late Notice was made for her. While that motion was pending, statute of limitations expires. Since husband did not file Complaint, his lawsuit untimely, since toll for filing late Notice of Claim on wife’s derivative claim did not apply to husband’s claim.)

ii. Actual Notice

Actual notice to the defendant of the facts surrounding the accident is a primary example of the justification for a late Notice of Claim. The moving party must, however, show that the municipality had actual knowledge of the facts through its employees. See, Johnson v. City of New York, 302 A.D.2d 463, 756 N.Y.S.2d 67 (2d Dep’t 2003) (where City withheld contents of report which gave it knowledge of claim, leave to serve is proper); Montero v. New York City Health and Hospitals Corporation, 17 A.D.3d 50, 793 N.Y.S.2d 160 (2d Dep’t 2005) (leave was granted where medical records in hospital possession gave actual notice of underlying facts for claim); Brown v. County of Westchester, 293 A.D.2d 748, 741 N.Y.S.2d 281 (2d Dep’t 2001) (leave to serve Notice 8 years after abuse of child denied, where social services records and medical records did not alert authorities of the abuse; Rabanar v. City of New York, 290 A.D.2d 428, 736 N.Y.S.2d 93 (2d Dep’t 2002) (leave to serve late notice 14 months after occurrence where claim was for defective lighting was denied since police report, upon which claimant relied, did not indicate any defect in the lighting as a factor in the accident); Lozada v. City of New York, 189 A.D.2d 726, 592 N.Y.S.2d 742 (1st Dep't 1993) (late filing allowed 8½ months after the 90 day limitations against the Housing Authority where a housing police officer had filed an accident report giving the authority notice of the accident); Mestel v. Board of Education of the City of Yonkers, 90 A.D.2d 809, 455 N.Y.S.2d 667 (2d Dep't 1982) (late notice of claim was excused where employees of the City were at the scene and assisted the plaintiff at the time of the accident); but see, Mrak v. City of New York, 192 A.D.2d 608, 595 N.Y.S.2d 831 (2d Dep't 1993) (leave to file late notice denied where no evidence that the City had actual knowledge of the incident; inability to speak English, not a basis for late claim). P.S. Ignorance of the law is no excuse! See Narcisse v. Incorporated Village of Central Islip, 36 A.D.3d 920, 829 N.Y.S.2d 578 (2d Dep’t 2007); Perez v. State of New York, 293 A.D.2d 918, 742 N.Y.S.2d 190 (3d Dep’t 2002); Ealey v. City of New York, 204 A.D.2d 720, 612 N.Y.S.2d 445 (2d Dep't 1994) (late Notice of Claim denied where plaintiffs delayed 13 months because they were unaware of the Notice of Claim requirement).

The Appellate Division, First Department, in Zahra v. New York City Housing Authority, 16 A.D.3d 245, 791 N.Y.S.2d 546 (1^st Dep’t 2005), expressed its displeasure with the lack of effort by the Housing Authority, where the public authority made no effort to investigate a claim to determine the correct address, and to realize that the address provided contained an error.

Then again, in Rodriguez v. City of New York, 38 A.D.3d 268, 832 N.Y.S.2d 13 (1^st Dep’t 2007), the Appellate Division, First Department, held that it was proper to dismiss a complaint where the location was incorrect. The defendant, New York City Housing Authority, demonstrated that it conducted a “timely investigation” but was unable to locate the place of the occurrence. The Court noted:

“Here, the notice of claim incorrectly identified the accident site, the injured plaintiff’s §50-h testimony was ‘vague’ and ‘obscure’, photographs provided by her two years after service of the notice of claim failed to provide any assistance in identifying the location.”

And, in Marino v. Town of Oyster Bay, 9 A.D.3d 394, 781 N.Y.S.2d 358 (2d Dep’t 2004) plaintiff claimed injury as a result of a defective curb. Defendant sought to dismiss on the ground that the notice of claim was defective. The Supreme Court denied the motion. The Appellate Division, Second Department, reversed and dismissed the Complaint. The Appellate Court held that the Notice of Claim did not comply with General Municipal Law Section 50-e because it “failed to identify the location of the accident with sufficient particularity to enable the defendant to locate the alleged defect, conduct a meaningful investigation, and assess the merits of the injured plaintiff’s claim.” The Court noted that a 50-h could have been held, but the defendant was under no duty to conduct such a hearing. Thus, the attempt by the plaintiff “nearly three years” after the incident, by identifying the condition on a photograph submitted by the defendant was insufficient to cure the deficiencies in the notice.

Moral: Just include a photograph or accident report with your notice of claim and you can avoid these types of problems.

Note that the Notice of Claim requirements give the public authorities a special right presumably to permit them to conduct an early investigation to offer an early resolution to the victim. The authorities are given the benefit of early notification and the opportunity to conduct a hearing and physical shortly after the occurrence. But as in Zahra, that right also imposes a responsibility to make the effort to actually investigate the claim, and not sit idly by to gain an unfair advantage over an unwitting adversary acting in good faith. As Goodwin, Johnson and Zahra, supra, demonstrate, the courts do not appreciate foot dragging or the intentional withholding of information which would have alerted both sides to a fuller understanding of the nature and circumstances of the claim. Then, again, courts don’t like sloppy notices as Rodriguez, Shpack and Rivera show.

iii. Disabling Injuries

If the plaintiff can show disabling injuries which prevented him from seeking counsel to allow assistance in filing the claim, a late Notice of Claim may be appropriate. See, Strauss v. New York City Transit Authority, 195 A.D.2d 322, 600 N.Y.S.2d 32 (1st Dep't 1993), but see, Munnerlyn v. City of New York, 203 A.D.2d 437, 610 N.Y.S.2d 322 (2d Dep't 1994) (allegation of "shock" not sufficient basis). See also Burgos v. City of New York, 294 A.D.2d 177, 742 N.Y.S.2d 39 (1^st Dep’t 2002) (complaint dismissed where plaintiff offered “insanity” as reason for failing to file Notice of Claim for 1 year).

iv. Transitory Conditions

In some instances leave may be granted where the condition alleged to have caused the injuries was transitory in nature and where there was no prejudice to the municipality. See, Strauss v. New York City Transit Authority, supra, (no prejudice where the condition was snow and ice which would have prevented an investigation even if a timely claim was filed); Hoffman v. New York City Housing Authority, 187 A.D.2d 334, 589 N.Y.S.2d 475 (1st Dep't 1992) (insufficiency of Notice of Claim for transitory condition of snow and ice not grounds for a dismissal five years after claim was presented); Rosenblatt v. City of New York, 160 A.D.2d 927, 554 N.Y.S.2d 800 (2d Dep’t 1990) (same) Cruz v. City of New York, 95 A.D.2d 790, 463 N.Y.S.2d 851 (2d Dep’t 1983).

E. Specificity of Location

When describing the location or condition which caused the occurrence, care must be taken to be as specific as possible. The case law, however, is inconsistent in this area and fact intensive. The wiser practice is to draft the claim properly and avoid these pitfalls and prevent a major headache at a later point. See the discussion on Brown, supra. See also, Atwater v. County of Suffolk, 50 A.D.3d 713, 855 N.Y.S.2d 226 (2d Dep’t 2008)(location of door not specified; dismissal warranted); Khait v. New York City Transit Auth., 38 A.D.3d 613, 831 N.Y.S.2d 526 (2d Dep’t 2007)(complaint dismissed where Notice of Claim gave date but no time but subsequent hearing testimony gave different date); Rivera v. City of New York, 303 A.D.2d 318, 757 N.Y.S.2d 273 (1^st Dep’t 2003) (Notice of Claim deficient where it referred to accident location by measurements of streets which would not intersect, thereby creating confusion which could have been corrected at 50-h hearing, or upon service of complaint and bill of particulars -- but wasn’t); Shpack v. New York City Transit Authority, 292 A.D.2d 590, 740 N.Y.S.2d 92 (2d Dep’t 2002) (complaint dismissed where notice simply mentioned that accident occurred “on West 6^th Street and Shell Road”, where 50h never specified location, and where Bill of Particulars named an entirely different street); Butler v. Smithtown, 293 A.D.2d 696, 742 N.Y.S.2d 324 (2d Dep’t 2002) (notice of claim not defective where area was repaired making a more detailed description of location impossible), Romuleus v. City of New York, 200 A.D.2d 387, 608 N.Y.S.2d 77 (1st Dep't 1994) (papers lacking in specificity inadequate and required dismissal); Ortiz v. New York City Housing Authority, 201 A.D.2d 547, 607 N.Y.S.2d 701 (2d Dep't 1994) (where Notice of Claim failed to state location, claim was patently defective and prejudiced the defendant); but see, D'Allesandro v. New York City Transit Authority, 83 N.Y.2d 891, 613 N.Y.S.2d 849 (1994) (court should look beyond the four corners of the Notice of Claim to all of the surrounding circumstances which would allow the municipal defendant to investigate the claim, including the testimony at the statutory hearing); and Zahra v. New York City Transit Authority, supra (no prejudice to authority where it had opportunity to conduct hearing to verify correct address where Notice of Claim contained wrong address).

F. Amending the Notice of Claim

Section 50(e)(6) allows you to amend the Notice of Claim “at any time after the service of Notice of Claim and at any stage of an action”. The amendment is appropriate if you are attempting to correct “a mistake, omission, irregularity or defect”. However, the error must have been made “in good faith”, and, of course, there has to be a showing of “no prejudice”. See, Hernandez v. City of Yonkers, 74 A.D.3d 1025, 903 N.Y.S.2d 150 (2d Dep’t 2010)(wrong description of location did not prejudice City where its employees witnessed the accident); Gatewood v. Poughkeepsie Housing Auth., 28 A.D.3d 515, 813 N.Y.S.2d 203 (2d Dep’t 2006)(wrong accident location in notice of claim did not preclude motion to amend since error corrected at §50-h hearing); Oschepkova v. New York City Transit Auth., 24 A.D.3d 523, 808 N.Y.S.2d 271 (2d Dep’t 2005)(motion to amend properly granted where §50-h hearing clarified manner in which accident occurred); Barrios v. City of New York, 300 A.D.2d 480, 751 N.Y.S.2d 562 (2d Dep’t 2002) (no prejudice by erroneous description, since evidence adduced at Section 50 h hearing and photographs attached to the Notice of Claim sufficiently apprised City of accurate location); Siegel v. City of New York, 292 A.D.2d 369, 738 N.Y.S.2d 80 (2d Dep’t 2002) (leave to amend Notice of Claim, complaint and bill of particulars to correct accident site 2 years after accident denied because errors prejudiced City’s ability to “investigate”); White v. New York City Housing Authority, 288 A.D.2d 150, 734 N.Y.S.2d 11 (1^st Dep’t 2001) (amendment not allowed where claim of poor lighting not mentioned in notice of claim, but first raised in bill of particulars); Stohmal v. New York City Housing Authority, 289 A.D.2d 65, 734 N.Y.S.2d 41 (1^st Dep’t 2001) (amendment proper to indicate claim of slippery paint where original notice stated that stairs were “worn, dirty, slippery”); Palmieri v. New York City Transit Authority, 288 A.D.2d 361, 733 N.Y.S.2d 127 (2d Dep’t 2001) (Notice of Claim contained incorrect bus number; amendment was proper four years later when plaintiff discovered error; fact that defendant waited until time of trial undermined claim of prejudice).

But, take a look at the procedural maze in Ramos v. New York City Transit Authority, 60 A.D.3d 517, 876 N.Y.S.2d 13 (1^st Dep’t 2009), where a very forgiving First Department allowed the plaintiff to serve a very late Notice of Claim in a wrongful death action. The plaintiff claimed that the bus operator who attempted to place her wheelchair on the bus lift failed to do so properly. The wheelchair rolled off the lift and plaintiff was thrown to the ground, sustaining serious injuries. The accident took place on July 28, 2004. On September 10, 2004, the plaintiff and her husband timely served a Notice of Claim for the lift related accident. However, Doris Ramos died on January 5, 2005. Her husband received Letters of Administration on September 26, 2005. On November 10, 2005 Mr. Ramos filed a summons and complaint which alleged causes of action for wrongful death, conscious pain and suffering and his loss of services. The summons and complaint were served on the defendant and an answer was obtained some time later. Thereafter, on May 22, 2007 the defendant moved to dismiss the wrongful death cause of action, alleging that the plaintiff had never stated that cause of action in the Notice of Claim previously served, and thereby violated General Municipal Law §50-e and Public Authorities Law §1212 with regard to the assertion of that claim. The plaintiff cross-moved to amend the original Notice of Claim to add a claim for wrongful death arising out of the same facts as set forth in the original Notice of Claim. Plaintiff argued that it would be permissible under General Municipal Law §50-e(6) to amend an existing and timely filed Notice of Claim to add a claim for wrongful death arising out of the circumstances enumerated in the original Notice of Claim. The motion court granted the motion to dismiss and denied the cross-motion to amend. The court held that the amendment was a substantive change in the theory of liability and not a technical change to correct a defect or omission as allowed in General Municipal Law §50-e(6). The Appellate Division reverses the court’s denial of the motion by the plaintiff to amend. The court holds that “it is true that the summons and complaint served by plaintiff within 90 days of his appointment as the decedent’s administrator was not a substitute for the Notice of Claim for wrongful death required by Public Authorities Law §1212(2) and General Municipal Law §50-3(1).” However, the court held that such a mistake, omission or irregularity could be corrected under General Municipal Law §50-e(6) if there was no prejudice by the amendment. Since the wrongful death claim arose from the same facts alleged in the timely Notice of Claim for personal injuries, plaintiff should have been granted leave to amend. It holds that there was no prejudice to the defendant by the amendment since it had a full and fair opportunity to investigate the initial claim in any event. Since the facts giving rise to the wrongful death claim were the same as those previously set forth in the original Notice of Claim, plaintiff did not prejudice the defendant by seeking the amendment.

Now it may be all well and good to allow an amendment to a Notice of Claim where the death action was clearly filed within two years of the date of death as the statute of limitations required. Thus, the timely summons and complaint setting forth for the first time the wrongful death action would still permit the court to have jurisdiction over the previously and timely filed Notice of Claim when it considered the amendment that was proposed. However, there is no mention of another problem with the filing of the complaint: namely, the summons and complaint that was filed on November 10, 2005 was filed more than one year and ninety days after the initial injury took place on July 28, 2004. The claim for personal injuries had to be filed within one year and ninety days from the date of the injuries. Here it was not. Instead, the one year and ninetieth day statute of limitations for the personal injury claim expired on October 26, 2005, two weeks before the summons and complaint was even served. So, does the claim for conscious pain and suffering or personal injury survive? Yes, it does. Section 210 of the CPLR gives a one year stay in filing as long as the claim was viable at the time of death.

G. A Picture Is Worth a Thousand Words: A Document Doesn’t Hurt Either

The old expression "a picture is worth a thousand words" may also assist the practitioner in avoiding a challenge to the specificity of the Notice of Claim. The photograph may be copied and attached to the Notice of Claim showing the condition and location where the accident occurred. While not required, it would invariably assist the court in finding a lack of prejudice to the defendant. For example, in O'Keefe v. City of New York, 181 A.D.2d 562, 582 N.Y.S.2d 88 (1st Dep't 1992), the Court held that inadequacy of the notice was not fatal where the City could have determined the correct location at the 50-h hearing and by viewing the photographs attached to the Notice of Claim. See also, Barrios v. City of New York, supra.

As the discussion in Brown, supra, shows, attaching photographs to support the claim was helpful to the Court of Appeals, and it prevented the dismissal of the complaint. Just as a photograph will prove very helpful in defeating claims of lack of specificity, available documentary proof doesn’t hurt either. A copy of the police report, incident report, discharge summary or similar documentary evidence outlining the claim to allow an “investigation” are all helpful – especially if you expect to use them at the time of trial. See, Smith v. State of New York, 55 A.D.3d 430, 866 N.Y.S.2d 70 (1^st Dep’t 2008)(Decision of court was attached).

An Infant Must Bring The Survival Claim For Pain and Suffering Within One Year and Ninety Days

If you thought that infancy provides any latitude for the infant distributees of a decedent on the conscious pain and suffering claim, you would be wrong. At least that is what the Court of Appeals says in Heslin v. County of Greene, 14 N.Y.3d 67, 896 N.Y.S.2d 723 (2010), aff’g, 53 A.D.3d 996, 862 N.Y.S.2d 210 (3d Dep’t 2008). We know from past precedent in Hernandez v. New York City Health and Hospitals Corp., 78 N.Y.2d 687, 578 N.Y.S.2d 510 (1991), that an infant received the tolling benefit of infancy in a wrongful death action where the only distributees were infants. In Hernandez, the Court of Appeals ruled that the time to file a Notice of Claim and bring suit was tolled during that period in time in which the infant was incapable of filing the Notice of Claim or bringing suit and was given the benefit of the tolling provisions of CPLR §208.

Heslin involved a truly tragic and sad situation. A three year old girl died as the result of the injuries sustained from intentional beatings by her mother’s boyfriend. The instances of abuse had been reported to Greene County and its related agencies involved with foster care and child welfare. As a result, a claim existed for the wrongful death and conscious pain and suffering of the three year old. However, the biological father, who was a felon, had abandoned her and was not entitled to sue on her behalf or recover. The child’s mother pleaded guilty to criminally negligent homicide because of the actions of her boyfriend. Thus, since both parents were disqualified from handling the administration of the child’s estate because of their felony convictions, the only distributees would be the three year old’s sisters, who were also minors. Thus, they could not seek appointment to handle the administration of the estate because of their own infancy. An attorney had been appointed to represent the sisters in connection with the abuse and neglect proceedings in family court. Becoming concerned that no one had been appointed to act as the siblings’ personal representative, she petitioned to be appointed as the administrator pursuant to SCPA 1001(8)(b). Recognizing the potential for a claim on behalf of the sisters against the County and those involved in failing to protect the three year old from abuse, she attempted to commence an action for wrongful death and personal injury. The sole distributees of any such action, of course, would be the infant’s siblings. Unfortunately, as we now see from the Court of Appeals’ determination, her appointment came too late to salvage the personal injury claim for conscious pain and suffering. The three year old died on November 21, 2004 from the injuries she sustained in May and August 2004. The attorney who was appointed for the siblings received that appointment in December 2004, shortly after the three year old’s death. After she was appointed administrator pursuant to the SCPA, she served a Notice of Claim on November 16, 2006 against the County and the related defendants. She waited five days before commencing an action for wrongful death and personal injury against the County and the related defendants. Apparently recognizing an issue with regard to the personal injury claim, she also moved, pursuant to General Municipal Law §50-e(5), for leave to file a late Notice of Claim as it related to the personal injury cause of action.

Let me just pause here for a moment. She need not seek leave to file a late Notice of Claim for the death action because the accrual there did not occur until after she was appointed. Thus, she was certainly within the statutory period for filing the Notice of Claim -- even though she was getting awfully close to the two year statute of limitations for the wrongful death claim, absent the infancy of the siblings. Thus, there was no problem in filing the Notice of Claim or commencing the action for wrongful death.

However, although the motion court granted the petition to file a late Notice of Claim, the Appellate Division, Third Department, reversed and held that it was inappropriate to grant leave on the personal injury cause of action for pain and suffering. The Court of Appeals agrees and holds that the statute of limitations has expired on the personal injury claim, thus depriving the court of jurisdiction to hear the petition for leave to serve a late Notice of Claim. The court concludes that the personal injury claim accrued no later than November 21, 2004, when the three year old died. It concludes that the plaintiff, therefore, had to file a Notice of Claim within ninety days of that death or seek leave beyond that day to file a Notice. However, the statute of limitations for the personal injury claim expired in February 2006, one year and ninety days after the death of the three year old. Thus, plaintiff could not seek leave under §50-e(5) at that time.

The plaintiff claimed, however, that the one year and ninety day statute of limitations for the personal injury cause of action was tolled under CPLR §208 because the sole distributees were infants. Plaintiff argued that Hernandez justified tolling the statute for the personal injury claims just as the Court of Appeals permitted the tolling for a wrongful death claim where the sole distributees were infants. The Court of Appeals determines that there is a clear distinction between the wrongful death claim for which a tolling was permitted under Hernandez and the personal injury claim of the decedent. Recognizing that the wrongful death claim is for the benefit of the distributees, the court adheres to its earlier ruling, noting that there was a clear distinction between the claim on behalf of those distributees and the claim brought for the injuries sustained by the decedent herself. Thus, the court sees a clear distinction between the two claims and concludes that it is appropriate to allow the tolling for infancy for the wrongful death action since the infants, as sole distributees, would be the only ones to benefit from the death claim. On the other hand, since the estate would recover all damages in a personal injury action, the distributees would not be the only persons who are able to recover those damages. Instead, the court concludes that the damages recovered for the personal injury action may be used to satisfy “outstanding liens, debts or expenses.” Thus, because the pain and suffering claim is “personal to the deceased and belongs to the estate, not the distributees ... the types of damages that are recoverable are different and the calculations of damages for the two claims are base

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