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Monday, October 24, 2011

Timely notice of claim as a condition precedent to maintaining a lawsuit


Timely notice of claim as a condition precedent to maintaining a lawsuit
Delle v Kampe, 296 AD2d 498

In the Delle case, the Appellate Division, Second Department, was asked to determine if James R. Delle's failure to file a timely Notice of Claim precluded his maintaining his Article 78 action challenging the Nassau County Civil Service Commission's refusal to reinstate his name on an eligible list.

Supreme Court had dismissed Delle's petition on the grounds that he had failed to serve a notice of claim on the County. In the words of the Appellate Division:

[Delle's] request for relief "presents the classic formulation of an Article 78 proceeding and `whether the determination was made in violation of lawful procedure, was affected by error of law or was arbitrary and capricious or an abuse of discretion'"

The Appellate Division said that this type of action does not require that the aggrieved individual file a timely notice of claim or be barred from proceeding with his lawsuit.

As authority for its ruling the court cited Piaggone v Floral Park-Bellrose Union Free School District, 92 AD2d 106, in which the Appellate Division ruled that "a notice of claim is not a condition precedent to a special proceeding properly brought pursuant to CPLR Article 78 seeking either judicial enforcement of [a] duty or judicial review of a prior adjudication by an administrative agency."

In another late "notice of claim" case, Taha v City of New York [New York State Supreme Court, Ia Part 5] Justice Stallman allowed a police officer who was assigned to the World Trade Center site from September 13, 2001 until December 2, 2001 and again on December 17, 2001 to file a late notice of claim. Taha alleged that the City did not provide her with proper respiratory gear and that she developed lung damage and breathing problems as a result.

Justice Stallman held that the City was aware that similar claims had been filed by police officers, firefighters and others as a result of their being involved in 9/11 activities. Accordingly, said the court, neither the defenses of "surprise" nor that it would be "substantially prejudiced" because of the delay in being notified of the claim were available to the City in situations where the individual had a reasonable excuse for failing to comply with the notice requirements set out in General Municipal Law §50-e.

In the words of the court:

... in light of the intensive media coverage and investigations at all levels of government including City agencies, the City cannot contend it did not know of the environmental conditions at the World Trade Center site or the equipment it issued to its own personnel.

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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