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!

“Ignorance is no excuse”!

How often have we heard that expression. And nowhere is that expression more appropriate, and often times more painful, than when applied to cases that require, as a condition to beginning a lawsuit, the proper filing of a “Notice of Claim”. If, for almost any reason whatsoever, you do not file a Notice of Claim upon the proper governmental or quasi-governmental agency within the required time (most often 90 days within New York City), your chances of getting a court to grant you permission to file a “Late Notice of Claim” ranges between slim to none !

This is not to say that permission to file a “Late Notice of Claim” is never granted. You must show the court “good cause.” “But I didn’t know about the rules” is most definitely NOT among the “good causes”. (As a long time practicing attorney, there are few things more frustrating than receiving a call from a potential client, with what would have been a very viable
case, only to have to turn the client away because he or she did not call in time to file a timely Notice of Claim).

When might a Late Notice of Claim be granted?

If the accident placed you in a hospital, in a coma, which lasted beyond the required period, a court may well be sympathetic to a circumstance as extreme as that. Courts are also sympathetic to “infants” (individuals under the age of 18 years in New York). A court will be reluctant to have a child be deprived of its day in court because of the failings of a parent. What may well happen is that the court will allow the fling of a “Late Notice of Claim” on behalf of the child, but if the adult had a valid case along with the child, the adult will be denied that same right. The basis for the court granting any request to file a “Late Notice of Claim” is determining whether or not the municipality or governmental agency will be “prejudiced” by granting the permission. The usual test to determine whether prejudice exists is to decide whether or not the entity or agency to be sued will still be able to carry on a thorough and complete investigation even though they receive the Notice of Claim in an untimely manner. For that reason, one of the issues the court will examine is whether or not the entity being sued had all of the information it needed, from other sources, to carry on a complete investigation, even though they did not have the Notice of Claim

If ever an experienced lawyer MUST BE consulted, it is in all instances where a Notice of Claim has to, or had to, be filed. If you failed to file a Notice of Claim within the required period, then the experience of the lawyer you choose to consult becomes all the more important. At The Orlow Firm we can educate you on the proper way to file all your paperwork. We will work hard to defend your rights.