The Late Filing of a Notice of Claim against New York City in a Negligence Case

An action against New York City requires that a Notice of Claim be filed within ninety days of the event that is the subject of the claim. Essentially, the Notice of Claim must contain sufficient enough detail in order that the municipality will have an opportunity to timely investigate and assess the bona fides of the claim so as to prepare a litigation strategy that will address the claimant’s allegations.

The ninety day period is strictly enforced, but can be extended under very narrow circumstances. An application for such relief must be made to a judge who will then consider the following elements in deciding whether an application for a Late Notice of Claim, and thereby an extension of the ninety day period, should be granted:

1. Whether the claimant is an infant (under the age of 18 years);
2. Whether the claimant has offered a sufficient reason for the delay in filing a Notice of Claim within the ninety day period;
3. Whether the municipality acquired knowledge of the facts that underlie the claim within the ninety day period despite no formal Notice of Claim having been served;
4. Whether any substantial prejudice has been suffered by the municipality as a result of the claimant’s failure to file a Notice of Claim within the ninety day prescribed period; and
5. That the application to file the Late Notice of Claim is made within the statutory time of one year and ninety days from the date of the occurrence.

Generally, the courts pay strict adherence to the ninety day rule and will extend the time to file a Late Notice of Claim only if there are compelling reasons that fall within the above categories. When an extension of time is granted, or denied, the likelihood is that the losing party will take an appeal to the Appellate Division, a procedure that takes time and is costly. It is essential therefore, that a person who is injured claiming the City of New York (a hospital, a department, a sub-division, an agent in the course of the municipality’s business, etc.) was negligent file a Notice of Claim within ninety days of the event. In case of a death, the ninety days begins to run once an Administrator is appointed for the cause of action for wrongful death. Once a representative of the estate is appointed and a timely Notice of Claim is filed, the action must be commenced within two years from the date of death.

A related issue was before the Supreme Court, Nassau County, Justice Feinman, as reported in Cavallaro v. Nassau Health Care Corp., and published in the New York Law Journal on July 31, 2012. In the Cavallaro case, a Notice of Claim was served more than ninety days after the occurrence by the wife of a decedent who claimed pain and suffering as a result of the malpractice of a county hospital. The court concluded that the filing was untimely, and dismissed those allegations that pertained to pain and suffering. The action for wrongful death however, was filed within the ninety day period of her appointment as Administratrix and was thus held to be timely.

In an even more recent case concerning a plaintiff represented by Finz & Finz, P.C., the issue of the filing of a Late Notice of Claim was once again before the court. In Lopez v. County of Nassau, decided on September 27, 2012 by Justice Michele M. Woodward, the Court held: “As a result of this accident Antonio Lopez sustained severe and disabling injuries, including traumatic brain injury, that has left him incapacitated and hospitalized. Therefore, the delay in filing the Notice of Claim is excusable. By virtue of prior accidents on this road within the vicinity of this accident that led to a comprehensive study of this road by Nassau County and the service of the Notice of Claim shortly after the 90-day period expired, the County acquired actual knowledge of the essential facts underlying this claim within a reasonable time after the time for filing expired. Finally, the County will not be prejudiced by the filing of this claim. It also appears that Antonio Lopez is incapable of understanding or comprehending the nature of these proceedings and cannot protect his rights as a plaintiff”.

The lesson to be learned is that the courts will use its discretion to bar a claim filed after the ninety day period unless there are special circumstances that fall within the five elements set forth above. Even then, there is no guarantee as to what an appellate court will decide in determining whether the court below abused its discretion. Therefore, in order to avoid these problems, a Notice of Claim against New York City, Nassau County, and other municipalities, should be filed within the prescribed time period, unless extraordinary circumstances make such a filing an almost impossible act to achieve.