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January 08, 2017

Court of Appeals' decision addresses the serving of a late notice of claim on a public entity


Court of Appeals' decision addresses the serving of a late notice of claim on a public entity
Newcomb v Middle Country CSD, 2016 NY Slip Op 08581, Court of Appeals, December 22, 2016

The issue in this appeal is whether the Supreme Court and, on appeal, the Appellate Division, abused their discretion in denying the petitioner's motion for leave to serve a late notice of claim on the Middle Country Central School District. The Court of Appeals concluded that “it is an abuse of discretion as a matter of law when, as here, a court determines, in the absence of any record evidence to support such determination, that a respondent will be substantially prejudiced in its defense by a late notice of claim. Here, the lower courts also improperly placed the burden of proving substantial prejudice solely on petitioner.” 

Accordingly, the Court of Appeals reversed the lower courts’ rulings.

The court explained that “Pursuant to General Municipal Law §50-e(1)(a), a party seeking to sue a public corporation, which includes a school district, must serve a notice of claim on the prospective defendant "within ninety days after the claim arises." General Municipal Law §50-e(5) permits a court, in its discretion, to extend the time for a petitioner to serve a notice of claim. The statute requires the court to consider whether the public corporation "acquired actual knowledge of the essential facts constituting the claim within [90 days after the accrual of the claim] or within a reasonable time thereafter" (General Municipal Law §50-e[5]). Additionally, the statute requires the court to consider "all other relevant facts and circumstances" and provides a "nonexhaustive list of factors that the court should weigh" (Williams v Nassau County Med. Ctr., 6 NY3d 531, 539 [2006]). One factor the court must consider is "whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits" (General Municipal Law §50-e[5]).

However, the Court of Appeals observed that ”... a finding that a public corporation is substantially prejudiced by a late notice of claim cannot be based solely on speculation and inference; rather, a determination of substantial prejudice must be based on evidence in the record.”


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