THE “LATE” NOTICE OF CLAIM
While this subject was already touched upon in our (now archived) blog post of November 20, 2009, the significant number of calls received which include expressions of fear that a belatedly recognized Notice of Claim filing requirement may have been missed, prompts this additional posting.
The major technical standard that courts will evaluate in determining whether to grant a “motion to file a late notice of claim” is, as previously noted, whether the municipality or the quasi-municipal entity will be prejudiced by the court granting the motion. (As to what constitutes “prejudice,” refer back to the 11/20/09 posting). Lack of prejudice alone is, of course, not enough, and having been ignorant of the requirement to file the Notice of Claim will carry virtually no weight with the court.
We presented before conditions of infancy, and physical or mental incapacity (with accompanying documentation), as grounds for court leniency.
To these we can add death, where statutory law will operate to grant time for probate procedures to take place.
There may be instances where the court will find that a Notice of Claim was actually filed but, through error, it was filed utilizing the incorrect name of the public agency. This is NOT the same as serving the wrong agency (and experienced attorneys will fully recognize that extreme caution must be used in this regard).
If an injured party can show that the public agency, or its insurance company representative, engaged the injured party in settlement negotiations and, in a reasonable reliance on those negotiations, a Notice of Claim was not filed, the courts have been known to be lenient.
It has also happened that courts will exercise some leniency where prejudice to the public entity does not exist, since an investigation even within the ninety day period would have been futile–as where the injury, it is alleged, was caused by a snow and/or ice condition.
To anyone who was injured, and believes they have lost the opportunity to receive compensation for the effects of that injury because they missed the deadline for filing a Notice of Claim, do NOT make that assumption! Consult an experienced Personal Injury attorney who may well be in a position to “revive” a case you may have decided was moribund. The impact on your life, financial and otherwise, could be very significant!