A BRIEF DISCUSSION REGARDING MUNICIPAL LIABLITY ISSUES REGARDING MUNICIPALITIES, BIG APPLE MAPS, TRIVIAL DEFECTS, SPECIAL USE AND LANDOWNER LIABILITY

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1 A BRIEF DISCUSSION REGARDING MUNICIPAL LIABLITY ISSUES REGARDING MUNICIPALITIES, BIG APPLE MAPS, TRIVIAL DEFECTS, SPECIAL USE AND LANDOWNER LIABILITY Presented to the New York State Trial Lawyer s Institute May 19, 2011 I am supposed to speak to you today about issues involving the rules of practice which are unique to municipal claims. I guess that, from a CLE standpoint, it sounds better to outline a topic that way, instead of telling you I really will be speaking about sandbags, traps and riddles. A rule suggests some standard, predictable way of doing things. Looking at the rules in City cases, there are numerous exceptions in some areas, and in other areas, few guidelines. Add to the mix factual hair-splitting and public policy considerations, and you have created a nightmare of a practice area for the unwary practitioner. The procedural pitfalls are a challenge for even those most familiar with the hurdles they pose. And, the judicial interpretations of those rules sometimes appear as predictable a guide as the next spin at one of the slot machines down here in Atlantic City. I also learned long ago never to underestimate any adversary. The dedicated staffs of the local corporation counsel do nothing but handle these claims. They develop an expertise in the nuances of City practice that results in many a failed attempt by an earnest plaintiff eager to assault the City s coffers. Be prepared for a worthy adversary in these matters, and don t assume that understaffed and underpaid public law offices are an easy target. Finally, don t overlook the public relations campaign being mounted against these claims. Do you wonder why elected officials routinely seize the bully pulpit to tell the public that the claims are bankrupting the City and taking money away from their kids education? Have you had your fill of media hype over frivolous claims? Or, did you ever wonder why certain insurance companies and public agencies mount anti-fraud campaigns inviting the good (i.e., non-litigious) citizens of the City to report fraudulent lawsuits? Because while tort reform may not pass in the Legislature, the people who hear and see these messages are your jurors! So, welcome to the world of municipal liability. Just remember to keep the Pepto-Bismol close by and your legal malpractice insurer on speed dial.

2 I. The Procedural Requirements for Making a Claim A. Naming the Correct Entity i. Maze of Names Unlike most other legal actions, a lawsuit against a municipality involves preliminary legal requirements, which can be fatal if not properly addressed. When presented with a claim involving an obvious governmental agency, the practitioner should automatically consider that special requirements will apply. There are obvious government agencies where this will occur, such as: the City of New York and the New York City Transit Authority. But, there are numerous separate entities that, although seemingly linked to the City, will impose these special requirements as well: - Metropolitan Transportation Authority - MTA Bus Company - Manhattan and Bronx Surface Operating Authority ( MABSTOA ) - Staten Island Rapid Transit Operating Authority ( SIRTOA ) - Metro North Railroad - LIRR - Port Authority of New York and New Jersey - Triborough Bridge and Tunnel Authority - New York City Housing Authority - New York City Health & Hospitals Corporation - New York City School Construction Authority There are also some not so obvious, where a Notice of Claim requirement exists: - Battery Park City Authority - Jacob Javits Convention Center (New York Convention Center Development Corporation) 2

3 - Westchester Medical Center ( Westchester Health Care Corporation ) (See Medley v. Cichon, 305 A.D.2d 643, 761 N.Y.S.2d 666(2d Dep t 2003), in case you mess this one up) Consider, for example, Medley v. County of Westchester, 36 A.D.3d 868, 828 N.Y.S.2d 575 (2 nd Dep t 2007), where plaintiff fell at the Playland Amusement Park in Rye, New York. Before reading this decision I did not know that Playland is owned by the County of Westchester! There are dozens of similar governmental or quasi-governmental agencies that require a Notice of Claim. When in doubt, find out! You have 90 days to file your claim and it is critical that you investigate the entity immediately. A good place to start is the Public Authorities Law which lists many of these entities. The Green Book published by the City of New York is the Official Directory of the City of New York and contains a complete listing of municipal agencies and their staffs. Don t assume that there is a unity of interest. Don t assume that the MTA operates the LIRR. File a separate claim where there is a separate title for the entity, or any doubt, and avoid some of these common mistakes: 1. The City of New York was separate from the Board of Education, and you had to serve and name each separately. Then along came the Department of Education. Even though the Mayor has direct control over this Department and has it housed right there at City Hall, the old rules apply, meaning you must name both in the Notice of Claim and Summons and Complaint. See Myers v, City of New York, infra; Perez v. City of New York, infra. 2. The City of New York is not the New York City Health and Hospitals Corporation or the New York City Housing Authority. 3. Metropolitan Transportation Authority is not the NYCTA, LIRR, Staten Island Rapid Transit Operating Authority, Metro-North. 4. One of my favorites: MABSTOA Manhattan and Bronx Surface Transit Operating Authority. But isn t this the NYCTA or MTA? NO, consider it a separate entity which operates the public bus lines in Manhattan and the Bronx only. It does not operate the subways, (the NYCTA does). It does not operate buses in any other borough (in Queens, Brooklyn and Staten Island, the NYCTA does). So name them separately in the Notice of Claim; serve them in person individually. 3

4 See, Young v. A. Holly Patterson Geriatric Center, 40 A.D.3d 990, 837 N.Y.S.2d 201 (2d Dep t 2007)(plaintiff served Notice of Claim on County of Nassau; Geriatric Center owned and operated by Nassau County Health Care Corporation (Nassau County Medical Center), failure to serve Notice of Claim on Geriatric Center and NCHHC warrants dismissal of complaint); Bertolino v. Town of North Elba, 16 A.D.3d 805, 791 N.Y.S.2d 204 (3d Dep t 2005) (plaintiff sued town and state but failed to timely serve the Olympic Regional Development Authority which was a separate entity not united in interest); LoCiciro v. Metropolitan Transportation Authority, 288 A.D.2d 353, 733 N.Y.S.2d 477 (2d Dep t 2001) (claimant sued MTA for injury at LIRR station; leave after the statute of limitations to add LIRR denied since the two were separate entities); Goldman v. City of New York, 287 A.D.2d 687, 732 N.Y.S.2d 78 (2d Dep t 2001) (injury on broken steps at public school; notice of claim named both the City of New York and the Board of Education; complaint dismissed where only City named, since Board, not City, was proper party regarding negligent maintenance). And take a look at Tahmisyan v. City of New York, 295 A.D.2d 600, 744 N.Y.S.2d 197 (2d Dep t 2002) where the Court held that you could not rely on the City s answer regarding the ownership of the premises. In Medley v. Cichon, however, 305 A.D.3d 643, 761 N.Y.S.2d 666 (2d Dep t 2003) the Court excused the confusion caused by the change in name of the Westchester County Medical Center to the Westchester Health Care Corporation because of excusable error in naming the correct entity. 4

5 ii. The New York City Health and Hospitals Corporation Confusion about the correct entity to sue can lead to disaster, as evidenced by the result in Scantlebury v. New York City Health and Hospitals Corporation, 4 N.Y.3d 606, 797 N.Y.S.2d 394 (2005). In Scantlebury, plaintiff had claimed medical malpractice because of treatment received at the Kings County Hospital, which is operated under the auspices of the New York City Health and Hospitals Corporation ( HHC ). Plaintiff served a Notice of Claim alleging medical malpractice upon the Comptroller of the City of New York. The comptroller thereafter served a notice of hearing pursuant to Section 50-h of the General Municipal Law and conducted that hearing. Plaintiff thereafter filed a Summons and Complaint alleging medical malpractice, and served the Complaint on the New York City Health and Hospitals Corporation. In her complaint, plaintiff alleged that a Notice of Claim had been served upon HHC within 90 days, and that she had complied with the other conditions for commencing suit, including appearing at a Section 50-h hearing and commencing the action within one year and 90 days after the accrual. The defendant, HHC, denied those allegations except admitted that plaintiff had served a Notice of Claim on the Comptroller of the City of New York, and that a hearing was held pursuant to Section 50-h. In February 2003, almost four years after the treatment took place, plaintiff filed a note of issue. The defendant, HHC, moved to dismiss the complaint on the ground that a timely Notice of Claim had not been served on the Health and Hospitals Corporation. It also alleged that the time to seek leave to serve a late Notice of Claim had expired in February 2001, one year and 90 days after the last date of treatment. The Supreme Court granted the motion and dismissed the complaint. The Appellate Division, Second Department, affirmed the dismissal. The Court of Appeals agreed and affirmed the dismissal! The Court of Appeals reviewed the legislative provisions which govern the commencement of most actions against municipal entities. Section 7401 of the Unconsolidated Laws of the State of New York addresses filing an action against the Health and Hospitals Corporation within one year and 90 days, and the filing of a Notice of Claim with a director or officer of the New York City Health and Hospitals Corporation within 90 days after the accrual of the cause of action. The Court noted that although the statute refers to a notice of intention to commence an action, that phrase has been used interchangeably with Notice of Claim terminology. It also noted that Section 7401 defers to the requirements of General Municipal Law Section 50-e, and authorizes the examination of the claimant pursuant to General Municipal Law Section 50-h. Section 50-e requires that the Notice of Claim be served against a public corporation by delivering the Notice of Claim personally or by registered or certified mail to the person designated by law to accept that service or to the attorney regularly engaged in representing such public corporation. The Court also noted that there is a savings provision in Section 50-e which deems a Notice of Claim to be timely served if the public corporation demands an examination of the person making the claim, or if the notice is actually received by the proper person within 90 days after the claim arises, and the claim is not returned with a specification of the defects in the manner of service within thirty days after the notice is received. 5

6 Noting that the City and New York City Health and Hospitals Corporation are separate entitles, and that the savings provision was meant to cure improper methods of service but not service on the wrong public entity, the Court of Appeals rejected the plaintiff s argument. It held that the savings clause of Section 50-e did not apply, since service was not effected upon someone authorized to receive such notice. Here, the proper -- and different -- party was HHC and not the City of New York. Plaintiff was put on notice that HHC had objected to service and nonetheless failed to seek leave to file a late Notice of Claim before the expiration of the one year and 90-day statute of limitations. The Court of Appeals held that even if the Comptroller of the City of New York participates in a Section 50-h hearing in a claim against the New York City Health and Hospitals Corporation, such conduct does not cure the defect of invalid service on an improper party. iii. The Department of Education As mentioned above, Mayor Bloomberg had promised reform of the Board of Education and set about to dissolve that entity and have the management and control of the public school system in the City of New York placed under his control and supervision with the creation of a new Department of Education. A new department was created and housed literally right at the Mayor s doorstep and subject to the mayor s policy determinations on all aspects of public education. The dissolution of the Board of Education and the creation of a new Department of Education was hailed as an innovative approach. The creation of the department under the direct control and supervision of the Mayor was claimed to be a needed reform to get the public school system up to par. As with most departments or agencies of a municipality, it is simply not necessary to name the department or agency in the Notice of Claim or to separately commence an action against the agency or department. Thus, negligence by an employee of the Department of Sanitation, or a defective condition in a police department facility, would be addressed simply by serving a Notice of Claim upon the City of New York and commencing an action, after the statutory conditions precedent were met, against the City of New York. It seemed logical to conclude, therefore, that with the creation of this new Department of Education and the dissolution of the Board of Education that such a practice could be followed here as well. But, you would be wrong if you made that assumption. The Appellate Division, First Department, has held in Perez v. City of New York, 41 A.D.3d 378, 837 N.Y.S.2d 571 (1 st Dep t 2007) that the Department of Education is a separate entity. Thus, like the Board of Education before it, you must serve a Notice of Claim upon it, abide by all rules of 50-e, 50-h and 50-i with regard to the manner of service, hearing requirements and limitation periods. And, you must therefore name it as a separate defendant with the City of New York in your complaint. See also, Myers v. City of New York, 64 A.D.3d 546, 882 N.Y.S.2d 306 (2d Dep t 2009). I also suggest naming the Board of Education in both the Notice of Claim and serving the Notice of Claim and Complaint upon the Board of Education. I had previously suggested that, in matters in which the Department of Education or its facilities or employees are involved, the Department of Education be named with the City of New York in a Notice of Claim and 6

7 Complaint, and that the Notice of Claim and complaint be served on the Department of Education and upon the Office of the Corporation Counsel and the Office of the Comptroller. I get plenty of calls now from worried attorneys on what to do. After you call your legal malpractice carrier, if time is left in the statute of limitations, consider a motion for a late Notice of Claim and file the Complaint while the motion is pending. You can argue the confusion in the law as an excuse for the delay and the lack of prejudice to the City/Board/Department. But keep your fingers crossed. Because there is no guarantee. See, e.g., Nacipucha v. City of New York, 18 Misc.3d 846, 849 N.Y.S.2d 414 (Sup. Ct., Bronx County 2003)(Victor, J.) See also, Herrera v. Duncan, 13 A.D.2d 485, 787 N.Y.S.2d 88 (2d Dept 2004)(serving agency of municipality not proper), discussed below. B. The Notice of Claim i. A Condition Precedent Before proceeding with a claim against a municipality, a legal document known as the "Notice of Claim" must be presented. The Notice of Claim is, in fact, a condition precedent to the presentation of any claim. With regard to a claim against a municipality such as the City of New York, the provisions of Section 50-e of the General Municipal Law (GML) control. That section generally states that as a condition precedent to commencing a lawsuit against the municipality, the plaintiff must file a Notice of Claim within 90 days after the date of the occurrence. So, you don t count the day of the incident; but the 90 days after accrual includes every weekday, weekend and holiday. 50(e)(1)(a). For wrongful death actions, the ninety days starts from the appointment of the administrator. 50(e)(1)(a). But, don t be fooled your conscious pain and suffering claim is distinct from wrongful death and you cannot wait for the appointment to preserve that claim, since some Surrogate s Courts are slow in processing your application and the Statute of Limitations is only one year and 90 days for the pain and suffering claim. If it looks like you will be delayed, file the Notice of Claim on behalf of the proposed representative. You can always amend later when the appointment is completed. See, Yoo v. New York City HHC, 239 A.D.2d 267, 657 N.Y.S.2d 189 (1 st Dep t 1997). 7

8 ii. Wrongful Death and Pain and Suffering McKune v. City of New York, 19 A.D.3d 308, 799 N.Y.S.2d 25 (1 st Dep t 2005) highlights the problems that you can get into if you wait too long to serve your Notice of Claim because an Administrator needs to be appointed in a wrongful death action. Here, the plaintiff was the Administratrix of the Estate of the decedent. The decedent was being transported on a Department of Corrections bus between criminal court and Riker s Island. She began to show signs of physical distress and medical treatment was provided. When plaintiff arrived at Riker s Island she was found dead. The process to obtain Letters of Administration took almost two years to complete. Finally, on August 16, 2001, Letters of Administration were issued -- less than thirty days prior to the expiration of the two-year statute of limitations for wrongful death. (That is the statute for wrongful death claims even against the City of New York.) Prior to that time, in April 2001, plaintiff moved as the prospective Administratix for an Order granting leave to file a late Notice of Claim. Plaintiff annexed a Notice of Claim dated April 18, 2001 which was not verified by the petitioner. The Notice of Claim was also not served on the City Comptroller. However, on August 21, 2001, five days after being appointed Administratrix, plaintiff filed and served a Summons and Complaint asserting causes of action for conscious pain and suffering and wrongful death. Plaintiff also served upon the Comptroller of the City of New York a Notice of Claim entitled Amended Notice of Claim which was dated April 18, 2001 and which was verified by the plaintiff on April 24, The City of New York moved to dismiss the complaint on the ground that thirty days had not elapsed between the service of the Notice of Claim and the filing of the complaint as required under General Municipal Law 50-i. The motion court granted the motion and dismissed the complaint since the Notice of Claim was not properly served, not timely served, not in proper form and served in such a way that service deprived the City of its thirty day period for resolution of the claim prior to the filing of a complaint. The Appellate Division, First Department, modified the order. It agreed that the first Notice of Claim was unverified and was neither properly served nor specific. The Notice of Claim that was dated April 18, 2001 was also not properly served and not verified. And, the Court also agreed that the complaint was properly dismissed since it did not comply with the requisite 30-day waiting period provided under 50-i. However, because allowing the 30 day period to elapse would have caused the plaintiff to file the complaint outside the twoyear period, the Court, as a matter of law, deemed the dismissal of the plaintiff s complaint by the lower Court to be without prejudice, so that plaintiff may commence a new action, based on the same underlying transaction, within the time limits set forth in CPL 205(a). In other words, the First Department was in a giving mood on the day this decision was rendered. In a footnote the Court notes that the claim for conscious pain and suffering contained in the complaint was voluntarily withdrawn by plaintiff. It had to be. The statute of limitations for pain and suffering remains one year and ninety days even though the wrongful death cause of action is two years. Thus, when the plaintiff finally got around to serving the Notice of Claim in April 2001, the statute of limitations for that claim had already expired. The Court did not discuss any issues regarding prejudice in the delay in filing the Notice of Claim or the inadequacy of the Notice of Claim that was served upon the City -- which is and remained a condition precedent to the filing of the 8

9 complaint. And, it would be curious to see what happens down the road when the issues regarding the lack of specificity and improper service of the Notice of Claim are not resolved by motion -- the result of which is not set forth in this decision -- since the City can always challenge the adequacy of the Notice of Claim even at the time of trial since it remained a condition precedent to commencing a claim against the City. Consider the plaintiff s predicament in Miller v. County of Sullivan, 36 A.D.3d 994, 827 N.Y.S.2d 750 (3d Dep t 2007). This case should highlight for you the urgency with which you should proceed in having an appointment of an administrator for an estate in a wrongful death action to avoid having the statute of limitations expire on the underlying cause of action for pain and suffering. Remember, they are distinct causes of action. While the statute of limitations for a wrongful death claim is two years from the date of death (see GML 50-i; EPTL 5-4.1; Public Auth. Law 1212, 1226; and Unconsolidated Laws 7401(2)), even when a municipality is involved, the one year and ninety day limitation period still applies under General Municipal Law 50-e(1)(a) and 50-i for the conscious pain and suffering claim. Remember to assert both of them in your complaint and to serve a Notice of Claim which outlines both allegations. You must file the Notice of Claim within ninety days to protect the pain and suffering claim. If the claimant subsequently dies, you may always seek to amend the Notice of Claim to reflect that change in status. However, you must commence the lawsuit for pain and suffering within one year and ninety days of injury or it will be barred. So, if you are having difficulty having an appointment of an administrator during that one year and ninety day period, assuming the claimant has died during that time, you must take the necessary steps to go to the Surrogate s Court and get emergency Letters of Administration to avoid having the statute expire on the pain and suffering cause of action. In Miller, the administrator faced that very problem. The decedent was involved in a motorcycle accident on April 18, He died two weeks later on May 1, A Notice of Claim was filed timely in June 2004 for both the conscious pain and suffering and wrongful death causes of action. Thereafter, Letters of Administration were issued to the administrator on September 29, 2005, a Summons and Complaint was then served on the Town on December 20, The Town served its Answer, which included the affirmative defense of failure to serve a Notice of Claim. Plaintiffs then served a Notice of Claim on January 11, 2006 and also moved in the Supreme Court to strike the affirmative defense and for leave to file a late Notice of Claim on the Town. The Supreme Court denied plaintiff s motion, in part because the statute of limitations had expired for the conscious pain and suffering cause of action. It also denied the application as it related to the death claim, noting the prejudice to the Town from the untimely notice. The Appellate Division affirms the Supreme Court s decision to deny the application as it related to the pain and suffering claim, noting that General Municipal Law 50-e(1)(a) requires that notice of the claim shall be made within ninety days after accrual -- and that in death claims it is ninety days from the appointment of the representative. Here, since the Notice of Claim was not filed against the Town until after the one year and ninety day period had expired -- much less within ninety days -- the cause of action was time barred. 9

10 As for the wrongful death claim, the Court correctly notes that the ninety days upon which to serve a Notice of Claim commences upon the appointment of the representative pursuant to General Municipal Law 50-e(1)(a). However, note that you don t have forever to do that since the statute of limitations on the claim for wrongful death still expires two years after the death under General Municipal Law 50-i(1). The Court notes that the appointment of the administrator was completed on September 29, still within the two-year limitations period. Plaintiff thereafter had ninety days to file a Notice of Claim on the death claim. Here, the application for leave to serve the Notice of Claim was made one month beyond the ninety-day period but still within the statute of limitations. The court finds that since the summons and complaint was served within ninety days of the appointment, the Town received actual knowledge of the essential facts underlying the claim in a timely manner. Thus, the Court holds that it was error to deny the application as it related to the wrongful death claim, and to rely upon the time frame that involved the period before the administration proceedings were completed -- especially where actual notice was received during the ninety-day period after appointment through service of the summons and complaint. So just to review the procedural requirements here, plaintiff s decedent was injured on April 18, He died on May 1, A Notice of Claim for the pain and suffering cause of action had to be made by July 19, 2004 (July 18, 2004 was a Sunday.) The complaint alleging the cause of action for conscious pain and suffering therefore would have to be filed by July 18, The death claim would have to be commenced by May 1, 2006 at the latest, with the Notice of Claim being filed ninety days after the appointment of the estate s representative. The lesson to be learned is not to wait for the appointment of the Administrator before serving the Notice of Claim. The Notice of Claim may be submitted on behalf of the Proposed Administrator and can always be amended later once the administration proceedings are completed. By serving the Notice of Claim for the proposed Administrator and by setting forth the specifics of the claim the City will have an adequate opportunity to investigate the claim, conduct its 50-h hearing and be placed on adequate notice of the substance of the allegations against it so as to avoid any future claim of prejudice. And, as happened to this plaintiff here, since the administration proceedings can drag on for some time, especially in certain Counties, you run the risk of waiting beyond the statute of limitations for the underlying claim for pain and suffering if you don t get the appointment and file the summons and complaint within the one year and ninety day period. If you haven t received the Letters of Administration within that period of time you can always seek emergency Letters from the Surrogate s Court for purposes of tolling the statute. iii. Timeliness The ninety day period for serving the Notice of Claim goes by very quickly and it is easy to miss. If you don t serve within that period, you will face the dire consequences of your error. The day of the occurrence is excluded from the calculation. General Construction Law Section 20. See also General Municipal Law 50-e(1)(a)( within ninety days after the claim arises ) If the last day falls on a Saturday, Sunday or public holiday, the first business day becomes the last day. General Construction Law Section 25a. Okay, now read these sections and see if you really want to wait until the last day! The failure to comply with this condition precedent is the 10

11 basis for dismissal of the claim. Davidson v. Bronx Municipal Hospital, 101 A.D.2d 1034, 475 N.Y.S.2d 792 (1st Dep't 1982) aff'd, 64 N.Y.2d 59, 484 N.Y.S.2d 533 (1984). See also Searle v. City of New Rochelle, 293 A.D.2d 736, 742 N.Y.S.2d 314 (2d Dep't 2002) (claim dismissed where mold was present in 1995, but claim not filed until 1998 claim accrues when injury is apparent, not when cause of injury is known). The municipality can assert the failure to comply at any time up to trial and need not raise the untimeliness of the claim as an affirmative defense to defeat a late claim. See, Kim L. v. Port Jervis City School District, 61 A.D.3d 825, 877 N.Y.S.2d 421 (2d Dep t 2009); Taverna v. City of New York, 166 A.D.2d 314, 560 N.Y.S.2d 775 (1st Dep't 1990). In Pierre v. City of New York, 22 A.D.3d 733, 804 N.Y.S.2d 365 (2d Dept 2005), the plaintiff had its claim dismissed on procedural errors in serving a Notice of Claim in a timely manner. The plaintiff failed to serve a Notice of Claim within ninety days as required under General Municipal Law 50-e. Again, the service of a Notice of Claim in that time frame is a condition precedent to commencing suit. Plaintiff thereafter served an untimely Notice of Claim without leave of Court. The Appellate Division, Second Department, held that the Notice of Claim was a nullity as a matter of law since plaintiff failed to move for leave to serve a Late Notice of Claim within the one year and ninety day statutory period for commencing an action. In Wade v. New York City Health and Hospitals Corporation, 16 A.D.3d 677, 793 N.Y.S.2d 68 (2d Dep t 2005) plaintiffs sought recovery for medical malpractice. The Supreme Court dismissed the complaint for failing to serve a timely notice of claim. It also denied the cross-motion to deem the notice of claim that had been served to be timely nunc pro tunc. The Appellate Division, Second Department, affirms the dismissal, noting that the defendant was under no obligation to apprise the plaintiffs that their notice of claim had not been timely served upon it. Any participation in the litigation process prior to moving to dismiss did not preclude the making of that motion, since a notice of claim is a condition precedent, and the failure to timely file it may be raised at any time prior to trial. Nor was there any showing that the municipal defendant misled or discouraged the party from serving a timely notice of claim. In Clayton Industries, Inc. v. City of Newburgh, 17 A.D.3d 308, 792 N.Y.S.2d 587 (2d Dep t 2005) plaintiff sought recovery for breach of contract against the City of Newburgh. However, plaintiff had not filed a Verified Notice of Claim prior to commencing the action. The Complaint also did not allege that a Notice of Claim had been served upon the defendant within three months after the accrual of the claim. Instead, the plaintiff served a Notice of Claim after the defendant had moved to dismiss the Complaint, without seeking leave of court to serve such a late Notice of Claim. The Court held, therefore, that the provisions of the City of Newburgh code with regard to the commencement of an action warranted the dismissal of the Complaint for failing to served a verified written Notice of Claim, which was a condition precedent to the commencement of an action. See also, Elliott v. County of Nassau, 53 A.D.3d 561, 862 N.Y.S.2d 90 (2d Dep t 2008)(error of one day in Notice of Claim; Amended Notice without leave of court; case dismissed since timely claim with accurate information not served). iv. Contents of the Notice 11

12 The purpose behind the Notice of Claim requirement ostensibly is to allow the municipality to investigate the claim while the information is still available and before witnesses depart or conditions change. See, Beary v. City of Rye, 44 N.Y.2d 398, 406 N.Y.S.2d 9 (1978). With regard to claims involving the New York City Transit Authority or the Manhattan and Bronx Surface Transit Operating Authority, the provisions for the Notice of Claim are set forth in the Public Authorities Law, Section Take a look also at Public Authorities Law Section 1276 for the MTA and its subsidiary corporations (LIRR, Metro North Railroad). So, what is the municipality entitled to receive to investigate the claim? Section 50(e)(2) requires: (a) a notice in writing, which is (b) sworn to by or on behalf of the claimant. See Butler v. Town of Smithtown, 293 A.D.2d 696, 742 N.Y.S.2d 324 (2d Dep't 2002) (improper verification not fatal to claim). But see Long v. State of New York, 7 N.Y.3d 269 (2006)( 8-b of Court of Claims Act specifically requires claimant to verify unjust conviction claim, not attorney -- defective verification fatal to claim.) The Notice shall contain: 1. The name and address of each claimant. (Don t forget the spouse on the derivative claim or the parent in the infant s claim); 2. The name and address of counsel; 3. The nature of the claim (is it a trip and fall; a police action; medical malpractice; roadway defect). This is important to avoid the claims of lack of specificity. The courts need to see the buzz words. So, be cautious in the use of terms. For example, don t say the patient slipped and fell if you are referring to a trip over a broken sidewalk; 4. The time when the event occurred ( approximately ); 5. The place where the event occurred; 6. The manner or way that the event occurred; 7. The items of damage or injuries claimed. Note that for municipalities under one million in population you are not supposed to state an amount. They are supposed to request a supplemental claim for damages. CPLR 3017(c) goes even further since it applies to all municipalities regardless of population size. Again, it tells us not to state a dollar amount. See Baker v. Town of Niskayuna, 69 A.D.3d 1016, 891 N.Y.S.2d 749 (3d Dep t 2010)(failure to list Labor Law sections in Notice of Claim not fatal where claimant gave date, time and location of the accident). 12

13 A letter is not the recommended form for the Notice of Claim. Consider the blunders by the plaintiff in Rosenbaum v. City of New York, 8 N.Y.3d 1, 828 N.Y.S.2d 228 (2006). There, a property owner was involved in a dispute with the City of New York over property liens that had consumed years of procedural wrangling. Plaintiff had retained an attorney who was in regular correspondence with counsel for the Department of Housing, Preservation and Development, the agency involved in the property dispute. The correspondence expressed various claims and the willingness to resolve those matters, setting forth the explanation for the underlying dispute. Plaintiff and his attorney had met with representatives of HPD, including the attorneys who had been involved in the prior discussions. Further correspondence followed, including a demand that unless the liens were removed, that counsel would have no choice but to direct my client to commence an action not only to discharge same, but for all damages, including counsel fees and punitive damages for the City s punitive refusal to comply with the law. And, for emphasis, the attorney warned the City to be guided accordingly. When HPD did not respond to the blunt exchange by plaintiff s counsel, a suit was commenced to discharge the liens and for damages for slander of title. Three months later plaintiff served a Notice of Claim with the Comptroller of the City of New York setting forth the allegations regarding the wrongful assessment of liens against the property and alleging that the cause of action arose on December 16, 1994 and was continuing. Years later plaintiff moved for summary judgment to discharge the liens and the City cross-moved for summary judgment dismissing the complaint. Those motions and the decisions which followed ultimately reached the Court of Appeals, which in a prior decision, granted partial summary judgment to discharge the liens and to return the claim for slander of title to the Supreme Court for trial. Then, in years after the litigation started -- the City again moved to dismiss, this time on the ground that the Notice of Claim had not been timely filed. Plaintiff had responded by arguing that the letters exchanged with the City of New York and warning them of the potential for future litigation were sufficient to satisfy the Notice of Claim requirements. The Court of Appeals warned that the claim requirements of General Municipal 50-e(2) are quite specific: (1) verification by or on behalf of the claimant; (2) the name and post office address of each claimant and attorney, if any; (3) the nature of the claim; (4) the time when, the place and the manner in which the claim arose; and (5) the items of damages or injuries claimed to have been sustained. The Court concluded that the letters sent by counsel, including the August 18, 1994 letter relied upon here was not a valid Notice of Claim. It did not alert its recipient to the imminence of litigation, or adequately describe the damages or when they allegedly occurred. Case dismissed. While I do not recommend Bloomberg forms, even they would have avoided the result here. It s not that hard to get it right, either. In Bennett v. New York City Transit Authority, 3 N.Y.2d 745, 787 N.Y.S.2d 711 (2004), the Court of Appeals found that a Notice of Claim was sufficient to apprise the defendant, New York City Transit Authority, of the nature of the claim to permit an adequate investigation. Plaintiff had slipped on a subway platform that was described as being slippery and defective from the inappropriate installation of tile. Plaintiff testified at a hearing and was not asked anything about the source of the wetness. Later, a Bill of Particulars was served which indicated that the defendant was negligent for causing leaks to exist at the station. 13

14 While the plaintiff claimed that there was a large accumulation of water, a witness for the defendant had claimed that the area was dry and clean. The Appellate Division, First Department had nonetheless held, in reversing the Supreme Court s dismissal of the Complaint, that the Notice of Claim, coupled with opportunity to conduct further inquiry into the matter at the General Municipal Section 50-h hearing, was in fact sufficient to permit the defendant to investigate the allegations and to determine the source of the water on the subway floor. The Court of Appeals affirmed and held that the Notice of Claim provided the place, time and nature of the accident, and permitted the defendant a sufficient opportunity to investigate, collect evidence and evaluate the merits of the claim. But see, Parker-Cherry v. New York City Housing Authority, 62 A.D.3d 845, 878 N.Y.S.2d 790 (2d Dep t 2009)(inconsistency between notice of claim and 50-h hearing as to cause of fall warrants dismissal of claim.) And, be wary of sharp tactics which may lull you into a disaster. In Goodwin v. New York City Housing Authority, 834 N.Y.S.2d 181 (1 st Dep t 2007), the claimant alleged that he was injured after falling down a flight of stairs on the premises of the defendant which rendered him a paraplegic. Plaintiff timely served a Notice of Claim on the defendants within the statutory ninety day period under General Municipal Law 50-e. Plaintiff claimed that the accident occurred on October 14, 2002 between 7:00 and 7:30 p.m. at that St. Mary s Projects, 665 Westchester Avenue, Bronx, New York. The claimant set forth that while walking down the steps from the 10 th to the 9 th floor in Exit B staircase he fell at the landing of the 9 th floor. Thereafter, approximately three weeks after the Notice of Claim was filed and one day after the ninety day Notice of Claim period expired the defendant, NYCHA, advised the plaintiff that it was rejecting the Notice of Claim because it did not particularly describe the alleged negligence. The letter to the plaintiff further claimed that NYCHA is severely prejudiced as it cannot conduct the proper investigation and otherwise assess the merits of the claim. After receiving the letter, plaintiff provided those particulars to NYCHA by filing another Notice of Claim, and elaborated on the manner in which the accident happened. NCYHA did not respond. NYCHA also did not request or hold a 50-h hearing. Thereafter, plaintiff commenced the action within one year and ninety days of the occurrence. NYCHA did not raise any affirmative defense with regard to the deficiency of the Notice of Claim. However, shortly after the two year anniversary of the accident, NYCHA moved for summary judgment and alleged that the first Notice of Claim was defective in that it failed to provide adequate information to NYCHA for investigation ; and that the plaintiff s correction, which NYCHA deemed to be a second Notice of Claim, was untimely since it arrived seventeen days after the ninety day period had expired. The Appellate Division, First Department, expressed its annoyance at the NYCHA strategy, highlighted by this summary of NYCHA s tactics: NYCHA follows up its one two punch with its knockout contention that the plaintiff was now barred from looking for leave from the Court to serve a late Notice of Claim because the statute of limitations had expired. For good measure, NYCHA pointed out that if the plaintiff had moved for leave to file a late Notice of Claim before the statute of limitations expired, leave would undoubtedly have been granted by the Court. Noting that the motion Court agreed with NYCHA, the Appellate 14

15 Division states succinctly we do not agree and reinstates the complaint. It concludes that the correction served by the plaintiff was not a second Notice of Claim but rather an amendment of a timely Notice of Claim without prejudice to NYCHA. The Court then engages in a very nice review of the requirements of the General Municipal Law 50-e and the need to apply its provisions flexibly. Here, the facts of this case warranted an exercise of discretion by the motion court to allow a nunc pro tunc correction of a good faith error, which correction was made in such timely fashion that, as a matter of law, it could not have prejudiced the defendant. Indeed, it chastises NYCHA for attempting to characterize the correction as a new Notice of Claims and refers to that attempt as disingenuous. The Court goes on to determine that the initial Notice of Claim was not substantively and fatally defective. Instead, it finds that the first Notice of Claim was appropriate since it made very clear that the action was for personal injuries and that negligence was the only theory of liability implied by the plaintiff. Referring to a decision by Judge Cardozo in 1931, the Court cites approvingly to his statement that what satisfies the statute is not knowledge of the wrong. What the statute exacts is notice of the claim. And, since the purpose of the Notice of Claim is to give a municipal authority the opportunity to investigate, NYCHA had every opportunity to do so since it had all of the information it needed seventeen days after the ninety day statutory period had expired. Thus, the Court concludes that NYCHA s claims of being prejudiced ring hollow. The Court goes on to state that NYCHA has an obligation to obtain the missing information with a modicum of effort rather than simply rejecting the Notice of Claim outright. Here, however, NYCHA did not have to make any effort whatsoever since the plaintiff supplemented the information within seventeen days of the request. But take a look at Lepkowski v. State of New York, 1 N.Y.3d 2001, 770 N.Y.S.2d 696 (2003), where the Court of Appeals dismissed a claim because the Notice of Claim did not comply with the similar requirements of Section 11(b) of the Court of Claims Act. It involved a claim for lost benefits and overtime over a long -- but unspecified -- period. And, the plaintiffs in Varsity Transit, Inc. v. Board of Education of the City of New York, 5 N.Y.3d 532, 806 N.Y.S.2d 457 (2005) could not have predicted the need to repeatedly file notices of claim during a dispute over ongoing payments. Various bus service providers who had contracted with the New York City Board of Education (Department of Education) sought to recover for breach of contract when the Board/Department failed to pay for certain increases in the cost of providing benefits to bus monitors who supervised the children on the buses. They initially commenced the litigation process by filing a Notice of Claim in which they alleged that the Board/Department had misapplied the formula and had only paid the companies during 1995 and 1996 and the initial period of 1996 and The litigation moved through the Supreme Court and in July 2001 (about five years after the start of the lawsuit) the bus companies moved for summary judgment on the initial claims and also sought leave to serve and file a Supplemental Amended Complaint to update their claim for damages for the succeeding years because of the continuing disputes that involved the litigants. The Court of Appeals held that since companies failed to continue to file new Notices of Claim every three months during the litigation to cover the ongoing underpayments they could not simply amend the Complaint to seek recovery for those payments as 15

16 well. Instead, the failure to file a Notice of Claim every three months for the underpayments was fatal to any claim for the ongoing loss. Thus, future plaintiffs, after starting the lawsuit, need only continue to file the Notice of Claim that they have filed before the lawsuit. Justifying its conclusion on the need to have strict application of Notice of Claim requirements, the court added that filing Notices of Claim every three months is not overly burdensome on plaintiffs and avoids any possible confusion about which acts of the government the plaintiffs find unlawful. The Court of Appeals found in C.S.A. Contracting Corp. v. New York City School Construction Authority, 5 N.Y.3d 189, 800 N.Y.S.2d 123 (2005) that although a contractor had no reason to expect that there would be a dispute over the payments due, it should have anticipated a dispute anyway, and the failure to file a Notice of Claim within the statutory three month period was fatal. In 1993, the plaintiff, C.S.A. Contracting Corp. entered into a contract with the New York City School Construction Authority (CSA) for asbestos abatement at public schools, including P.S. 29 on Staten Island. On December 3, 1993, the contractor submitted a request for payment for additional work done at P.S. 29. The SCA approved the request in February 1994 but in April 1994 informed the contractor that it would not pay for the additional work since it alleged that the contractor had overcharged on a different school project. Thus, on May 9, 1994 the contractor served a Notice of Claim on SCA seeking recovery for the outstanding work. Plaintiff submitted a new Notice of Claim dated September 21, 1994 which sought damages for three specific areas of work that had been performed. Ultimately, the contractor commenced a breach of contract action in April At trial, the plaintiff s claim was dismissed by the trial court because it did not submit a Notice of Claim within three months of the accrual of its claim. The Appellate Division, Second Department, affirmed the dismissal. The Court of Appeals held that the Complaint must be dismissed because the plaintiff failed to serve a Notice of Claim within three months of the accrual of the cause of action. It relied upon 1744(2) of the Public Authorities Law which required that a Verified Notice of Claim be submitted within three months after the accrual of such claim. The Court of Appeals determined that in contractor claims such as this the accrual occurs when a contractor s damages are ascertainable -- which means once the work is substantially completed. Since the contractor s work was done in December 1993 the Court finds that, as a matter of law, all claims accrued by the end of Thus, the plaintiff was required to serve a Notice of Claim by the end of March In noting that the Education Law was amended to find the accrual as of the time that the claim was denied, specifically to avoid this anomaly, the Court of Appeals, however, found that it could not do so since the legislature has yet to amend the Public Authorities Law. What if you forget something? You may always seek leave to serve an amended Notice at any time and at any stage of an action if there is a mistake, omission, irregularity or defect made in good faith, and if there is no prejudice to the municipality. This specifically does not include mistakes, omissions or defects regarding the manner of service or the time of service. Keep in mind an important decision by the Court of Appeals in Brown v. City of New York, 95 N.Y.2d 389, 718 N.Y.S.2d 4 (2000). There, the plaintiff had filed a notice of claim regarding a trip and fall on a New York City sidewalk. The Notice of Claim, however, referred to the fact that 16

17 he tripped on a defective portion of sidewalk and curb. He submitted detailed measurements of the location in the Notice of Claim. He also attached photographs of the scene, which circled the area around the curb, which included a small portion of sidewalk as well. He also testified at a Section 50(h) hearing that he tripped on a defective sidewalk. The jury found specifically that plaintiff had fallen on the sidewalk. The evidence showed prior notice of the sidewalk but not the curb. Motion to set aside the verdict granted by the trial court on the ground that the Notice of Claim was defective since it referred to both sidewalk and curb! The Appellate Division, Second Department, affirmed the dismissal and agreed that the Notice of Claim was deficient. The Court of Appeals, in a nice review of the law applicable to Notice of Claim requirements, reversed the Appellate Division. It noted that Section 50(e) does not require literal nicety or exactness, but rather sufficient information to investigate. Given that the notice here gave the location, included photographs and referred to a defective sidewalk four times, the Notice was sufficient to allow the City to investigate the claim. The lesson to be learned from Brown is clear: Be careful about the language used to describe the location and manner in which the accident happened. Don t hedge your bets by referring to sidewalk and curb or by circling a photograph without a reference point. You will have plenty of time at later proceedings to have your client mark a photograph in the context of recorded testimony to avoid any mistake on the specifics of that occurrence. See, Pelaez v. City of New York, 2010 NY Slip Op (2d Dept 2010)(wrong address in Notice of Claim warrants denial of leave to amend and dismissal of complaint); Shpack v. New York City Transit Authority, 292 A.D.2d 590, 740 N.Y.S.2d 92 (2d Dep t 2002), where plaintiff s complaint was dismissed because the Notice of Claim did not list a specific location; the testimony at the Section 50-h did not clarify the location; and a supplemental bill of particulars gave a completely different location than generally described in the Notice of Claim, Complaint and Bill of Particulars; and Rivera v. City of New York, 303 A.D.2d 318, 757 N.Y.S.2d 273 (1 st Dep t 2003) where the complaint was dismissed because the Notice of Claim gave measurements for the wrong location and never corrected the mistake despite the testimony at the 50(h) which highlighted the confusion, and plaintiff s Bill of Particulars simply repeated the same error. But see Smith v. State of New York, 55 A.D.3d 430, 866 N.Y.S.2d 70 (1 st Dept 2008)(by attaching copy of decision in underlying criminal matter, claimant satisfied all elements of unjust conviction in Notice of Claim); Ramos v. New York City Transit Authority, A.D.3d, N.Y.S.2d (2009 NY Slip Op )(1 st Dep t 2009)(where plaintiff was granted leave to amend the original Notice of Claim to allege a wrongful death claim after the two year limitation period because the original notice was timely and the complaint alleging both pain and suffering was timely). C. Service Requirements When dealing with the different municipalities throughout the state, care should be taken to serve the Notice of Claim on the appropriate agency responsible for processing it. Within the City of New York, a Notice of Claim should be served on the Corporation Counsel s office at 100 Church Street, New York, New York, and upon the Comptroller's Office, at One Centre Street, New 17

18 York, New York. Claims against the New York City Transit Authority should be served at the headquarters at 130 Livingston Street, Brooklyn, New York, and upon its counsel at the same location. The New York City Health and Hospitals Corporation, which is a separate legal entity, must be separately served at its headquarters at 125 Worth Street, New York, New York. Similarly, the New York City Housing Authority should be separately served at its headquarters at 250 Broadway, New York, New York. While service by registered mail is permitted under Section 50- e(3)(b), personal service is the better choice. And always get a stamped copy for your files. Don t take shortcuts on service as evidenced by Viruet v. City of New York, 97 N.Y.2d 171, 738 N.Y.S.2d 2 (2001), discussed more fully, infra, where counsel didn t sue HHC but did serve the Notice of Claim on the Office of the Corporation Counsel. Viruet recognized that the corporation counsel was the attorney regularly engaged in representing the Health and Hospitals Corporation and excused the lack of service directly on the entity itself, which saved plaintiff. In Scantlebury, however, plaintiff never attempted service on either the Health and Hospitals Corporation or the corporation counsel s office. But, be mindful of the fact that since Viruet, the HHC has set up its own in-house legal unit -- lawyers who were shifted from the Corporation Counsel s office. So, if you serve the Corporation Counsel instead of HHC, you will have improperly served the entity. Take a look also at Santiago v. Santana, 8 A.D.3d 650, 779 N.Y.S.2d 554 (2d Dep t 2004) where plaintiff was confronted with the confusing world of franchised bus lines which often have the same Notice of Claim requirements as the public authority which issues the license to operate. Plaintiff was injured when he was stuck by a bus operated by Liberty Lines Transit. However, the bus is owned by the County of Westchester. Within 90 days of the accident, plaintiff served a Notice of Claim on the Westchester County Department of Transportation. The Notice was then forwarded to the attorneys for Liberty Lines and its bus driver. During settlement negotiations, counsel for Liberty Lines advised plaintiff s counsel that the Notice of Claim was defective because it was not served on the proper person under General Municipal Law Section 50-e(3)(a). Plaintiff moved to have the original Notice of Claim deemed properly served on Liberty Lines, the bus driver, and the County. The Supreme Court denied the motion on the ground that the plaintiff could not proceed by motion, but was required to commence a special proceeding, since the County was not a party to the action. The Appellate Division reversed and held that plaintiff did not have to proceed by special proceeding on the issue of the service of the Notice of Claim. The Court further held since the County was obligated to indemnify Liberty Lines, it should have been served with a Notice of Claim. Even though plaintiff did not serve the Notice of Claim on the proper person under the General Municipal Law, nonetheless, it was actually received by defendant s counsel, which was the firm regularly engaged in representing the County. Since counsel received it within the time specified by the statute, and the County failed to properly reject the Notice within 30 days, the Court deemed that the Notice was properly served on the County. Here s some others to consider: In Gonzalez v. Board of Education of the City of Yonkers, 298 A.D.2d 358, 751 N.Y.S.2d 256 (2d Dep t 2002), the plaintiff was injured after falling on stairs inside a school. Plaintiff claimed that the step had a metal slippery condition which was described as a worn metal strip affixed to the edge of the steps. No expert proof was submitted. 18

19 Instead, plaintiff relied on photographs to show that the metal strips were worn down and sloped downward on one step. The defendant moved for summary judgment to dismiss the complaint on the ground that the Notice of Claim was untimely. The Appellate Division agreed with the lower court that the Notice of Claim was timely served, since it was sent by certified mail on the 90 th day following the date of accident. The fact that the defendant did not receive it until one month later was not dispositive of the timeliness of the Notice. The Appellate Division, however, reversed the denial of summary judgment and dismissed the complaint, since it found that the staircase was free of actionable defects, as a matter of law. It held that the worn condition of the strips at the edges of the steps were not the basis for liability, and the photographs that were submitted did not show any actionable defects for which liability could be imposed. And, in Jones v. City of New York, 300 A.D.2d 359, 751 N.Y.S.2d 522 (2d Dep t 2002), a medical malpractice action, the plaintiffs served a letter upon the defendant, Health and Hospitals Corporation, by ordinary mail. The Appellate Division agreed with the Supreme Court in dismissing the complaint, in that a letter sent by ordinary mail was not a valid Notice of Claim. The letter was not verified, it did not set forth the nature of the medical malpractice, and it was not served personally or by registered or certified mail, as required by the General Municipal Law Section 50-e(3). Finally, since the application to serve a late Notice of Claim was made beyond the two-year statute of limitations for commencement of a wrongful death action against the Health and Hospital Corporations, the Court lacked any discretion to consider the petition. Please, avoid these pitfalls by serving the entity, the comptroller, and the corporation counsel which represents that entity. Remember, service is free! And I strongly discourage any service other than personal service which gives you a date and time stamped copy of the document. If you insist on mailing a Notice of Claim, at least don t send it to the wrong address as the plaintiffs in Alston v. Avrasano, 24 A.D.3d 399, 805 N.Y.S.2d 117 (2d Dep t 2005) did. The plaintiff wanted to commence an action against the Metropolitan Transportation Authority and the New York City Transit Authority. In attempting to do so, the plaintiff mailed the Notice of Claim to an incorrect address. Thereafter, plaintiff sought to cure the defect by serving the Notice of Claim at the correct address, but unfortunately did so outside the statutory period of one year and ninety days. The Appellate Division, Second Department, affirmed the dismissal of the complaint, finding that the mailing to an incorrect address was improper since the Notice was not actually received by a proper party under General Municipal Law 50-e. Moreover, since the plaintiff failed to move for leave to serve a late Notice of Claim within one year and ninety days, the service of the Notice of Claim was a nullity. And, please, when you have to serve the Notice of Claim or the Petition for a late Notice of Claim, don t rely on the postal service to do your job as the attorney did in Jagmohan v. City of New York, 14 A.D.3d 491, 788 N.Y.S.2d 165 (2d Dep t 2005). Plaintiff sought leave to serve a late Notice of Claim. The motion court granted the motion, and upon reargument adhered to the prior determination. The Appellate Division, Second Department reverses, and dismisses the Complaint. It holds that the plaintiff failed to timely serve the defendants with her motion for leave to serve a late Notice of Claim, since she mailed the motion papers to the Office of the Corporation Counsel at 19

20 the wrong address and therefore did not comply with CPLR Rule 2103(b)(2) which required the service upon an attorney in a pending action by mailing same to the attorney at the address designated for such service. Moreover, the Court found that the Office of the Corporation Counsel did not acquire actual notice of the motion until more than one year and 90 days after the cause of action had accrued. Thus, since the motion was made outside the time of the statute of limitations, the Supreme Court lacked authority to rule on the application. And, remember you can t serve the Notice of Claim or Complaint on an agency or department of the municipality because the agency or department is not the proper entity. Consider Herrera v. Duncan, 13 A.D.2d 485, 787 N.Y.S.2d 88 (2d Dep t 2004). Plaintiff was injured in an accident apparently involving a street defect. Plaintiff filed a Notice of Claim against the New York City Department of Environmental Protection. The City of New York moved to dismiss the Complaint for failure to timely file a Notice of Claim against the City of New York. The motion court denied the motion. The Appellate Division, Second Department reversed and dismissed the Complaint. The Court held that the plaintiff failed to timely file a Notice of Claim against the City of New York. Plaintiff could not demonstrate that the Notice of Claim was served upon either the Corporation Counsel or the Comptroller of the City of New York. Rather, plaintiff only served the Notice of Claim upon the New York City Department of Environmental Protection. The Court found that such service was not sufficient to meet plaintiff s statutory obligation under General Municipal Law Section 50-e. The Court held that the New York City Department of Environmental Protection was not a proper person within the meaning of the statutory requirements, and the failure to serve the Notice of Claim on either the Corporation Counsel or the Comptroller within the 90 days specified within General Municipal Law Section 50- e(3) was fatal. Moreover, since plaintiff could not seek leave to file a late Notice of Claim within the applicable statute of limitations, the Court could not rectify the error. The Complaint, therefore, had to be dismissed. See also, Rosenbaum v. City of New York, 8 N.Y.3d 1, 828 N.Y.S.2d 228 (2006)(letters to Department of Housing, Preservation and development do not satisfy Notice of Claim requirements for claim against the City of New York). And, for all of you tech savvy individuals, an is not sufficient to constitute a Notice of Claim. See Gastman v. Department of Education of the City of New York, 60 A.D.3d 444, 874 N.Y.S.2d 459 (1 st Dep t 2009), lv. denied, 2009 WL (2009). D. The Late Notice of Claim i. General Requirements In the unfortunate circumstance when a Notice of Claim cannot be filed within the statutory period of 90 days, application can be made to the Court for leave to file a late Notice of Claim. Section 50(e)(5). The basis for the motion will depend on the factual circumstances which would justify excusing the late filing. While the decisions are fact intensive, some general -- although often conflicting -- patterns have emerged to add life to a claim outside the 90-day window. The case law is legion in this area and research should be conducted to find the relevant cases which would allow the filing of a late claim. The various factors usually considered in combination, are set forth in GML Section 50-e(5). Significant among the factors is actual 20

Alani Golanski, for appellants. Christian H. Gannon, for respondent. A statute requires anyone who brings a lawsuit against

Alani Golanski, for appellants. Christian H. Gannon, for respondent. A statute requires anyone who brings a lawsuit against ================================================================= This opinion is uncorrected and subject to revision before publication in the New York Reports. -----------------------------------------------------------------

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