A RECENT CASE

In a recent case, the Plaintiff managed to jump out of the way of a fire department vehicle which struck a person standing next to the Plaintiff. Thinking that she was not seriously injured, the Plaintiff did not pursue litigation.

The seemingly minor injury eventually turned into a serious injury which required knee surgery. The Plaintiff indicated that she had been stymied in an attempt to obtain information from the Police Department because she was not directly hit by the offending vehicle, and she failed to report any injury at the time of the accident. This set of circumstances led to the late filing of the Notice of Claim.

At a hearing regarding the motion to file the late Notice of Claim, the court noted the testimony of the individual that was hit by the vehicle supporting the Plaintiff’s contention that she was present at the scene and time of the accident. The Court also noted that the municipality was well aware of all the relevant facts surrounding the accident because of the police presence at the scene and because it was the agents of the municipality which performed the acts of alleged negligence complained of by the Plaintiff.

Finding the reasons for the Plaintiff’s delay in filing were reasonable, and that no prejudice inured to the municipality, the Court allowed the late Notice of Claim.

NOTICE OF CLAIM | MUNICIPAL LIABILITY | SPECIAL USE

Until 2003 the City of New York was primarily responsible for injuries incurred by individuals through cracks, potholes and uneven surfaces on City sidewalks. The primary responsibility shifted in 2003, through City Council legislation, that made the abutting commercial or residential landowners primarily responsible. However, in the case of one, two or three family homes, where those residences are at least partially owner occupied, and where the residence is used exclusively for residential purposes, the City of New York remains primarily responsible.

Nevertheless, even in those instances where the City of New York would be primarily responsible for accidents that occur because of sidewalk defects, the liability shifts to the homeowner if the cause of the accident was some item that was installed for the benefit or “special use” of the adjoining homeowner.

Defects in driveways are common “special use” situations. A water shut off valve, embedded in the sidewalk, has been held to be a “special use”.

Wisdom would dictate the service of a Notice of Claim on the City of New York even if a “special use” is anticipated. It simply cannot hurt, and failure to do so could be catastrophic if an incorrect assumption regarding a “special use” is made. Below I have added the legislation that shifts liability for sidewalk defects mainly from the City of New York to abutting landowners.

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!

PART III : BEGINNING LITIGATION

The beginning of litigation refers to the start of an actual lawsuit. In cases where a NOTICE OF CLAIM was required to be filed, the law prohibits the commencement of legal action before the Notice of Claim is filed AND before the agency or governmental subdivision against which it was filed has had an opportunity to question the claimant. This questioning is called a “50 H Hearing”, the statutory name for what is simply an oral deposition of the claimant. Sometimes the “50 H Hearing is waived by the governmental entity, sometimes not. Once the hearing is held, or waived, the papers to begin the lawsuit may be filed in court, and then served on the defendant or defendants. (You, the person bringing the lawsuit, is known as the PLAINTIFF). The filing of the papers in court BEGINS the actual lawsuit.

In cases that do not require the filing of a Notice of Claim, the papers to begin the lawsuit, generally a Summons and Complaint, may be filed in court and then served upon the defendant (or defendants) at any time. The service of the Summons and Complaint is usually performed by a professional process server that works for a Process Service company. There are legal requirements as to when and how legal documents may be served, and cases can arise where the method of service will be vital to the viability of that case. This is especially true in cases that are begun very near the expiration of the Statute of Limitations, when improper service can mean the time limit within which a lawsuit MUST be brought has expired, and there is no recourse!

Just a special note regarding Statutes of Limitations:

Never, ever think you have enough time to contact your attorney about a possible lawsuit “because my friend told me that I have three years…” Time limits within which you MUST bring lawsuits vary greatly. Most negligence actions have three year time limits, most medical malpractice have two and a half, most intentional acts require lawsuits within one year, and so on. However, there are exceptions to virtually every rule. Get to an experienced attorney by calling our New York City Law Firm at The Orlow Firm before your opportunity to litigate disappears!

THE PERSONAL  INJURY CASE – WHY PERSONAL INJURY CASES TAKE SO LONG, PART II : “THE INTAKE”

Having determined that a case should be accepted into their office, attorneys will be eager to begin acting upon certain crucial matters as soon as possible. The most important of all these crucial matters are those that involve time limits.   There are many “time limits” that, if overlooked, could doom a case virtually before it gets off the ground.  Other time limits, if missed, might not doom the case completely but could amount to a financially costly error.

“Notices of Claim,” that must be timely filed in all cases involving governmental or quasi-governmental authorities or agencies, are a top priority.  Failure to file a properly completed “Notice of Claim”, within the proper time limit, upon the proper agent, and in the proper office designated specifically for that purpose will, in most instances, doom the case . (See this BLOG’s ARCHIVE for more on “NOTICES OF CLAIM”).  In motor vehicle accidents, claims for “No-Fault “ benefits must be timely filed as well as notices to “MVAIC”, the State established agency, that will be available to pay an injured vehicle occupant in the event other vehicle insurance is, for whatever reason, not available.   Failure to file appropriate documents in the prescribed fashion is a failure that can only bring gloom and doom to both an attorney and his client.   For this reason alone, the experience of the attorney you choose is an invaluable commodity!

The basis of an attorney’s relationship with a client is the “Retainer Agreement”.

This sets forth the rules governing the relationship between the attorney and the client.  It should be written in simple language, so that every client should be able to understand it.  The client should feel absolutely free to read it carefully and ask any questions that may come up.  And a client should ask for a copy of the agreement, if one is not offered by the attorney, to take with them for later review.   An attorney is also obligated to send a “Retainer Statement”, which sets forth the identity of the client, the nature of the fee arrangement, and how the client was referred to this particular attorney, to the Office of Court Administration, which is then filed and kept until an eventual “Closing Statement” is sent at the end of the case, describing how the case concluded.

The work immediately following intake does not stop there.  Investigations necessary to the eventual success of a case often begin at once.  Scenes of accidents examined and photographed, witnesses interviewed while the incident is still fresh, clients advised NOT TO SPEAK AT ALL WITH INSURANCE COMPANY AGENTS, hospital records ordered, and a myriad of other items, each specific to the needs of the individual case before the attorney, are tackled at this early stage.  There will be plenty to do later on as the case develops to make it worthwhile to see these important preliminary steps are attended to now. At The Orlow Firm our New York City Personal Injury Attorneys can help you with your case. Call us today.

“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.

Any number of accidents might end up in a lawsuit against a municipality–perhaps the very city, town or village where you live.   BEWARE!  Rules that apply to such cases, or lawsuits involving many governmental agencies such as public hospitals and transportation systems, schools and government owned utilities, have strict special requirements that do not apply in other cases.  To ignore those rules is very likely to prevent you from bringing a lawsuit no matter how meritorious or serious your case!

In New York, as in most jurisdictions, governmental entities are entitled to written notice of the details of an accident within 90 days of the incident.  The document that contains these details is called a “NOTICE OF CLAIM“.   Fail to PROPERLY file a “NOTICE OF CLAIM“, and your lawsuit is over before it begins !  Very sad, very harsh, but there are very few exceptions (for which a skilled attorney knowledgeable in such matters should be consulted).   Slip and fall in a municipal building, get hit by a city bus, claim a false arrest or suffer an injury in a county hospital and you MUST file a “NOTICE OF CLAIM” in New York within the required time period or you forfeit your right to bring a lawsuit against the appropriate municipal entity.

Where do you file the “NOTICE OF CLAIM”?
NOT in just any city office.  It MUST be in the office designated by the particular entity to be sued.   Each entity will designate a place and a simple call to that entity will give you the location to file.

What do you put into your “NOTICE OF CLAIM”?
All such “Notices of Claim” should state the date, time and  precise location of the occurrence.  It should also contain a BRIEF description of what happened and list any injury that was incurred.

Good news: City agencies and governmental entities are very helpful to the public and will not only tell you where to file a Notice of Claim but will often send you a form to use.  If you want to you can also buy a standard Notice of Claim form in any legal stationery store which can always be found in the neighborhood near a courthouse or on the Internet.

IMPORTANT SUGGESTION: If you are uncertain whether you will file a lawsuit, err on the side of caution.  File a Notice of Claim!  It costs you nothing but a few minutes of your time.  Fail to file a Notice of Claim and then decide you want to sue after the 90 day period–in almost every case, forget about it.   (For the rare exceptions, as we said before, a skilled and knowledgeable New York City Personal Injury lawyer should be consulted). Notices of Claims should ALWAYS be notarized!

New York City Claim Forms

Posted by New York Personal Injury Lawyer Steve Orlow