September 08, 2020

The failure to serve a timely notice of claim upon a municipality or public corporation may be excused under certain circumstances

General Municipal Law §50-e requires that a "notice of claim" be served upon the municipality or public corporation within 90 days of the date that the claim arose as a condition precedent to commencing an action sounding in tort against a municipality or public corporation,.* 

The failure to serve a timely the notice of claim was the issue when a petitioner [State Trooper] sought for leave to serve a late notice of claim against the County and the County Sheriff [jointly "the County"] in order to bring a lawsuit against the County for State Trooper's injury she allegedly suffered while she was responding to a 911 call and her state police motor vehicle collided with a motor vehicle operated by a Deputy Sheriff employed by the County.

Supreme Court granted State Trooper's petition seeking to serve the late notice and the County appealed.

The Appellate Division, holding that Supreme Court "providently exercised its discretion" in granting State Trooper's petition to serve a late notice of claim on the County, explained:

1. In determining whether to grant leave to serve an untimely notice of claim, the court, in exercising its discretion, must consider all relevant circumstances, including whether (1) the petitioner demonstrated a reasonable excuse for the failure to serve a timely notice, (2) the municipality or public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, and (3) the delay in seeking leave would substantially prejudice the municipality or public corporation in its ability to defend against the action;

2. "The presence or absence of any one of these factors is not necessarily determinative" and "the absence of a reasonable excuse is not necessarily fatal" to the courts granting the petition; and

3. Whether the municipality or public corporation acquired timely actual notice of the essential facts constituting the claim should be accorded great weight.

In this instance the Appellate Division, citing Kuterman v City of New York, 121 AD3d 646, concluded that the County acquired timely, actual knowledge of the essential facts constituting the claim, opining that "[a]lthough a police report regarding an automobile accident does not, in and of itself, constitute notice of a claim to a municipality. Where, however, the municipality's employee was involved in the accident and the report or investigation reflects that the municipality had knowledge that its employee committed a potentially actionable wrong, "the municipality can be found to have actual notice."

The police report, said the court, indicated that the County committed a potentially actionable wrong "when its employee allegedly failed to yield the right of way to the injured [State Trooper's] vehicle even though the injured [State Trooper's] vehicle's lights and sirens were activated" and the accident report indicated that the State Trooper "was allegedly injured in the accident."

Further, noted the Appellate Division, in responding to a Freedom of Information Law for documents related to this accident, the County produced the police accident report, photographs taken of the vehicles and the accident scene, unit activity logs for the vehicles, and the County Sheriff's report regarding the accident. Accordingly, the court concluded that "the County [had] acquired timely actual knowledge of the essential facts constituting the [State Trooper's] claim."

Finding that the County had acquired timely knowledge of the essential facts constituting the State Trooper's claim, the Appellate Division held that the State Trooper met her "initial burden of showing that the County would not be prejudiced by the late notice of claim" and the County "failed to come forward with particularized evidence demonstrating that the late notice of claim substantially prejudiced its ability to defend the claim on the merits."

Addressing the issue of State Trooper's delay in seeking to file a late notice of claim, the Appellate Division ruled that as the County had actual knowledge of the essential facts underlying the claim and as no substantial prejudice to the County was demonstrated, "[State Trooper's] failure to provide a reasonable excuse for the delay in filing [her] notice of claim did not serve as a bar to [Supreme Court's] granting leave to serve a late notice of claim.

* See Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d 455, Wally G. v New York City Health & Hosps. Corp. [Metro. Hosp.], 27 NY3d 672.

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2020/2020_04840.htm