New York General Municipal Law § 50 requires a claimant to submit a Notice of Claim detailing the date, location and manner of her alleged injuries within 90 days as a condition precedent to any lawsuit against various municipal entities.  The purpose is to afford the municipality the opportunity to properly investigate the alleged accident before valuable information or evidence is lost.

Under certain circumstances, a court will allow a late notice of claim if (1) the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter; (2) the petitioner demonstrated a reasonable excuse for the failure to serve a timely notice of claim, and (3) the municipality was not substantially prejudiced by the delay in its ability to maintain its defense on the merits.

Recently, in Lawhorne v. City of New York, the claimant was allegedly injured as a result of a transitory defect in the sidewalk. She filed a petition to have her late Notice of Claim deemed timely served upon the City of New York because she commenced the proceeding over five months after the 90 day period had expired. In support of her request, the petitioner claimed that she mistakenly believed that another law firm which allegedly employed an unspecified investigator with whom she had spoken a few days after the accident was representing her. She also claimed that she did not know that she had to serve a notice of claim upon the City. The trial court granted the plaintiff’s request to have the Notice of Claim deemed timely served, and allowed the case to proceed.

The Appellate Division, Second Department reversed the trial court’s decision, denying the petition to serve a late Notice of Claim and dismissing the action entirely. The Second Department found that the injured plaintiff had failed to demonstrate a reasonable excuse for her failure to serve a timely notice of claim.  The court also noted that she had failed to rebut the City’s assertion that the more than five-month delay between the expiration of the 90-day statutory period and the commencement of the proceeding would substantially prejudice its ability to conduct an investigation of the claim especially given the fact that the alleged sidewalk defect was of a transitory nature.

Thanks to Jorgelina Foglietta for her contribution to this post and please write to Mike Bono for more information.