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Suing the Government Just Got a Little Bit Easier

In New York, before you can begin suing the government for personal injury or property damage, you must file a Notice of Claim within 90 days after the claim arises. Miss the deadline and your claim is usually barred. However, courts do have limited discretion to allow service of a late notice in certain circumstances. Now thanks to a recent court case, it’s a little easier for plaintiffs to bring a lawsuit even if they missed the deadline.

A Notice of Claim informs the potential defendant about the nature of the claim; the date, time, and place where it arose; and the amount of the claim. Regardless of whether the defendant is the State, town/city/village, or government agency, notice must be filed within 90 days after the claim arises. (New York’s Town and Village Laws have separate rules and procedures for breach of contract cases.) If you fail to file a timely notice of claim, the general rule is that you cannot bring your claim. However, a court can look at certain factors in deciding to allow a lawsuit to go forward despite missing the deadline.

Some of these factors focus on the municipality: Did the municipality have “actual knowledge of the essential facts constituting the claim” within 90 days or a reasonable time thereafter? Has the delay prejudiced the municipality in maintaining its defense? The court may also look at the circumstances of the claimant. For example: Was the claimant a minor/incapacitated? Was the filing late because of ongoing settlement negotiations? Did the claimant make an excusable error concerning the identity of the defendant?

On December 22nd, the NY Court of Appeals in Newcomb v. Middle Country Central School Dist., changed the rules which control when the court can exercise discretion, to the benefit of late claim filers. In the case, the Plaintiff’s son was involved in a car accident. The plaintiff filed timely notice of claim against the state, town and county, but not the school district. That was because the Plaintiff was unable to get the accident file due to an ongoing police investigation. After the notice of claim deadline, the Plaintiff obtained the police file, which included photographs indicating that a large sign for a school function had been in the intersection at the time of the accident. The Plaintiff sought permission to file a late notice of claim against the school district. The trial court and the Appellate Division both refused to allow a late notice of claim to be filed against the school district.

The Court of Appeals reversed the decision. It held that the lower courts could not just assume that allowing the late notice of claim would harm the school district’s ability to defend the claim. Instead, the Court established the burden of proof in these types of cases. It stated that initially the burden was on the plaintiff to make a plausible argument that the late notice would not substantially prejudice the school district. Once the Plaintiff meets that burden, the burden shifts to the Defendant to make a “particularized evidentiary showing” of prejudice. In other words, the Defendant cannot just state it would be negatively affected by the late claim; it must provide evidence showing prejudice.

Despite the decision, Plaintiffs still have a difficult burden in bringing a claim after the Notice of Claim deadline. Therefore, the best course of action is to act quickly when injured by a governmental entity and file a timely notice. However, if the deadline has passed, talk to a qualified attorney to determine whether you may be able to revive your claim.


This post does not constitute legal advice or establish an attorney-client relationship.

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