Few appreciate the technical hurdles that await those who wish to sue a municipality like the City of New York (or one of its related entities). Before a lawsuit may be brought, the party seeking to sue must first file a "Notice of Claim"--a sworn, written document which outlines each injured individual's name and address, counsel's name and address, the factual particulars (date, time, place, and manner of injury), and the requested relief. And, you have only ninety (90) days--typically measured from when the loss or injury is incurred--to file that special notice. The theory behind this expedited, advance-notice requirement is to allow the City an opportunity to investigate the claim while the incident is relatively recent and the pertinent information and evidence are still readily available and accessible to the municipality.
Because it is an absolute precondition to a case's commencement, many refer to the Notice of Claim as a "condition precedent"--something that must first occur or the lawsuit may be dismissed. [For example, with respect to claims filed against the City of New York, a law known as the General Municipal Law (GML) governs the process. And that's where you will find that 90-day filing requisite. GML section 50(e)(1)(a).]
While the law typically excuses inconsequential errors or omissions in the Notice, failing to properly serve the document or to ensure its timely filing may be fatal. And, while there are appellate cases allowing Notices to be filed "late"--outside of the 90-day window--they should be viewed as the exceptions rather than the norm.
Some of the grounds which may excuse a late filing include:
death;Be forewarned: This analysis is not exhaustive. As a result, readers are encouraged to consult with counsel to confirm whether or not the criteria and timeframes discussed in this blog post apply to their particular case.
infancy;
mental or physical incapacity;
reasonable reliance on settlement representations (made by the municipality or an insurer); and
excusable error regarding the name of the public corporation.
A case which reinforces the harsh realities of this area of the law is Astree v. New York City Transit Authority, (NYCTA). While the Queens County Supreme Court granted Ms. Astree's request to serve a late Notice of Claim, on appeal, the Appellate Division, Second Department, summarily discounted Astree's excuses--which included her inability to speak English, law office failure, and her lack of familiarity with the law's notice of claim requirements--and reversed the lower court's order, citing "prejudice" to the NYCTA as a result of the agency's inability to conduct a "prompt investigation" and "maintain a defense."
A bit draconian, wouldn't you agree?
For a copy of the Appellate Division's decision in Astree v. New York City Transit Authority, please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2006/2006_05736.htm