In Dixon v. City of New York, The Appellate Division, Second Department eld that for a negligent infliction of emotional distress action, the time to serve a §50-(e) notice of claim upon the city does not necessarily commence on the date of the city’s negligence, but rather on the date the plaintiffs became aware of the city’s actions and suffered mental anguish.

In Dixon, the Plaintiffs learned, after the remains of their deceased son were returned by the city following an autopsy, that the remains returned did not include the brain and certain other organs. Plaintiffs did not learn this fact until after the remains were returned and buried, when they received the autopsy report. The city attempted to contend that because the autopsy had been performed more than 90 days after it received notice of the claim, that such claim was time-barred. The Second Department disagreed, noting that the time for providing notice under §50-(e) was when the plaintiffs first learned of the defendants actions and suffered mental anguish.

Thanks to Alison Weintraub for her contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06775.htm