§ 50-E — Notice of claim

New York § 50-E

• Jurisdiction: New York
• Law GMU: General Municipal
• Art. 4: Negligence and Malfeasance of Public Officers; Taxpayers' Remedies

Text

§ 50-e. Notice of claim. 1. When service required; time for service;\nupon whom service required.\n (a) In any case founded upon tort where a notice of claim is required\nby law as a condition precedent to the commencement of an action or\nspecial proceeding against a public corporation, as defined in the\ngeneral construction law, or any officer, appointee or employee thereof,\nthe notice of claim shall comply with and be served in accordance with\nthe provisions of this section within ninety days after the claim\narises; except that in wrongful death actions, the ninety days shall run\nfrom the appointment of a representative of the decedent's estate.\n (b) Service of the notice of claim upon an officer, appointee or\nemployee of a public corporation shall not be a condition precedent to\nthe commencement of an action or special proceeding against such person.\nIf an action or special proceeding is commenced against such person, but\nnot against the public corporation, service of the notice of claim upon\nthe public corporation shall be required only if the corporation has a\nstatutory obligation to indemnify such person under this chapter or any\nother provision of law.\n 2. Form of notice; contents. The notice shall be in writing, sworn to\nby or on behalf of the claimant, and shall set forth: (1) the name and\npost-office address of each claimant, and of his attorney, if any; (2)\nthe nature of the claim; (3) the time when, the place where and the\nmanner in which the claim arose; and (4) the items of damage or injuries\nclaimed to have been sustained so far as then practicable but a notice\nwith respect to a claim against a municipal corporation other than a\ncity with a population of one million or more persons shall not state\nthe amount of damages to which the claimant deems himself entitled,\nprovided, however, that the municipal corporation, other than a city\nwith a population of one million or more persons, may at any time\nrequest a supplemental claim setting forth the total damages to which\nthe claimant deems himself entitled. A supplemental claim shall be\nprovided by the claimant within fifteen days of the request. In the\nevent the supplemental demand is not served within fifteen days, the\ncourt, on motion, may order that it be provided by the claimant.\n 3. How served; when service by mail complete; defect in manner of\nservice; return of notice improperly served.\n (a) The notice shall be served on the public corporation against which\nthe claim is made by delivering a copy thereof personally, or by\nregistered or certified mail, to the person designated by law as one to\nwhom a summons in an action in the supreme court issued against such\ncorporation may be delivered, or to an attorney regularly engaged in\nrepresenting such public corporation or, in a city with a population of\nover one million, by electronic means in a form and manner prescribed by\nsuch city.\n (b) Service by registered or certified mail shall be complete upon\ndeposit of the notice of claim, enclosed in a postpaid properly\naddressed wrapper, in a post office or official depository under the\nexclusive care and custody of the United States post office department\nwithin the state.\n (c) If the notice is served within the period specified by this\nsection, but in a manner not in compliance with the provisions of this\nsubdivision, the service shall be valid if the public corporation\nagainst which the claim is made demands that the claimant or any other\nperson interested in the claim be examined in regard to it, or if the\nnotice is actually received by a proper person within the time specified\nby this section, and the public corporation fail to return the notice,\nspecifying the defect in the manner of service, within thirty days after\nthe notice is received.\n (d) If the notice is served within the period specified by this\nsection and is returned for the reason and within the time provided in\nthis subdivision, the claimant may serve a new notice in a manner\ncomplying with the provisions of this subdivision within ten days after\nthe returned notice is received. If a new notice is so served within\nthat period, it shall be deemed timely served.\n (e) If the notice is served by electronic means, as defined in\nparagraph two of subdivision (f) of rule twenty-one hundred three of the\ncivil practice law and rules, it shall contain the information required\nunder the provisions of subdivision two of this section. In addition,\nsuch notice shall contain the following declaration: "I certify that all\ninformation contained in this notice is true and correct to the best of\nmy knowledge and belief. I understand that the willful making of any\nfalse statement of material fact herein will subject me to criminal\npenalties and civil liabilities." Service of the notice shall be\ncomplete upon successful transmission of the notice as indicated by an\nelectronic receipt provided by such city, which shall transmit an\nelectronic receipt number to the claimant forthwith.\n (f) Service of a notice of claim on the secretary of state as agent of\nany public corporation, as defined in subdivision one of section\nsixty-six of the general construction law, whatsoever created or\nexisting by virtue of the laws of the state of New York upon whom\nservice of a notice of claim is required as a condition precedent to\nbeing sued, may be made by personally delivering to and leaving with the\nsecretary of state or a deputy, or with any person authorized by the\nsecretary of state to receive such service, at the office of the\ndepartment of state in the city of Albany, duplicate copies of such\nnotice of claim together with the statutory fee, which fee shall be a\ntaxable disbursement but only in the amount equal to the portion of the\nfee collected by the public corporation in accordance with subdivision\nfour of this section. Service on such public corporation shall be\ncomplete when the secretary of state is so served. Within ten days after\nreceiving a notice of claim, the secretary of state shall either: (1)\nsend one of such copies by certified mail, return receipt requested, to\nsuch public corporation, at the post office address on file in the\ndepartment of state, specified for the purpose; or (2) electronically\ntransmit a copy to such public corporation at the electronic address on\nfile with the department of state specified for that purpose; or (3)\ntransmit a copy to such public corporation by any other such means or\nprocedure established by the secretary of state, provided that such\nother means or procedure of transmittal must be verifiable.\n 4. Requirements of section exclusive except as to conditions precedent\nto liability for certain defects or snow or ice. No other or further\nnotice, no other or further service, filing or delivery of the notice of\nclaim, and no notice of intention to commence an action or special\nproceeding, shall be required as a condition to the commencement of an\naction or special proceeding for the enforcement of the claim; provided,\nhowever, that nothing herein contained shall be deemed to dispense with\nthe requirement of notice of the defective, unsafe, dangerous or\nobstructed condition of any street, highway, bridge, culvert, sidewalk\nor crosswalk, or of the existence of snow or ice thereon, where such\nnotice now is, or hereafter may be, required by law, as a condition\nprecedent to liability for damages or injuries to person or property\nalleged to have been caused by such condition, and the failure or\nnegligence to repair or remove the same after the receipt of such\nnotice.\n 5. Application for leave to serve a late notice.\n Upon application, the court, in its discretion, may extend the time to\nserve a notice of claim specified in paragraph (a) of subdivision one of\nthis section, whether such service was made upon a public corporation or\nthe secretary of state. The extension shall not exceed the time limited\nfor the commencement of an action by the claimant against the public\ncorporation. In determining whether to grant the extension, the court\nshall consider, in particular, whether the public corporation or its\nattorney or its insurance carrier acquired actual knowledge of the\nessential facts constituting the claim within the time specified in\nsubdivision one of this section or within a reasonable time thereafter.\nThe court shall also consider all other relevant facts and\ncircumstances, including: whether the claimant was an infant, or\nmentally or physically incapacitated, or died before the time limited\nfor service of the notice of claim; whether the claimant failed to serve\na timely notice of claim by reason of his justifiable reliance upon\nsettlement representations made by an authorized representative of the\npublic corporation or its insurance carrier; whether the claimant in\nserving a notice of claim made an excusable error concerning the\nidentity of the public corporation against which the claim should be\nasserted; if service of the notice of claim is attempted by electronic\nmeans pursuant to paragraph (e) of subdivision three of this section,\nwhether the delay in serving the notice of claim was based upon the\nfailure of the computer system of the city or the claimant or the\nattorney representing the claimant; that such claimant or attorney, as\nthe case may be, submitted evidence or proof as is reasonable showing\nthat (i) the submission of the claim was attempted to be electronically\nmade in a timely manner and would have been completed but for the\nfailure of the computer system utilized by the sender or recipient, and\n(ii) that upon becoming aware of both the failure of such system and the\nfailure of the city to receive such submission, the claimant or attorney\nhad insufficient time to make such claim within the permitted time\nperiod in a manner as otherwise prescribed by law; and whether the delay\nin serving the notice of claim substantially prejudiced the public\ncorporation in maintaining its defense on the merits.\n An application for leave to serve a late notice shall not be denied on\nthe ground that it was made after commencement of an action against the\npublic corporation.\n 6. Mistake, omission, irregularity or defect. At any time after the\nservice of a notice of claim and at any stage of an action or special\nproceeding to which the provisions of this section are applicable, a\nmistake, omission, irregularity or defect made in good faith in the\nnotice of claim required to be served by this section, not pertaining to\nthe manner or time of service thereof, may be corrected, supplied or\ndisregarded, as the case may be, in the discretion of the court,\nprovided it shall appear that the other party was not prejudiced\nthereby.\n 7. Applications under this section. All applications under this\nsection shall be made to the supreme court or to the county court: (a)\nin a county where the action may properly be brought for trial, (b) if\nan action to enforce the claim has been commenced, in the county where\nthe action is pending, or (c) in the event that there is no motion term\navailable in any of the counties specified in clause (a) or (b) hereof,\nin any adjoining county. Where the application is for leave to serve a\nlate notice of claim, it shall be accompanied by a copy of the proposed\nnotice of claim.\n 8. Inapplicability of section. (a) This section shall not apply to\nclaims arising under the provisions of the workers' compensation law,\nthe volunteer firefighters' benefit law, or the volunteer ambulance\nworkers' benefit law or to claims against public corporations by their\nown infant wards.\n (b) This section shall not apply to: (i) any claim made for physical,\npsychological, or other injury or condition suffered as a result of\nconduct which would constitute a sexual offense as defined in article\none hundred thirty of the penal law committed against a child less than\neighteen years of age, incest as defined in section 255.27, 255.26 or\n255.25 of the penal law committed against a child less than eighteen\nyears of age, or the use of a child in a sexual performance as defined\nin section 263.05 of the penal law committed against a child less than\neighteen years of age; or\n (ii) any civil claim or cause of action revived pursuant to section\ntwo hundred fourteen-j of the civil practice law and rules.\n (c) Notwithstanding any provision of law to the contrary, this section\nshall not apply to any civil claims or causes of action brought by any\nperson to recover damages for physical, psychological, or other injury\nor condition suffered while in custody pursuant to section two hundred\neight-a of the civil practice law and rules.\n