Many people are not aware that to commence an action against the City of New York or any municipality within the State of New York, you have to file a notice of claim
A notice of claim is not the commencement of an action in Court, such as with the service of a Summons and Complaint. The service of a notice of claim is a condition precedent to the service of a law suit.
What is a notice of claim?
In essence and in theory, a notice of claim allows a municipality to conduct an investigation of the department or agency that is alleged to be responsible for the negligence that caused the accident or injury claimed. In the notice of claim you will have to provide the City or Town information related to you claim as you are at this point a claimant, and not a plaintiff who has actually sued;
What is included in the notice of claim?
- The exact date, time, and place of the incident (you cannot be too exact about this). When you photograph the defect, be sure to get a close up at ground level as this clearly indicates something about the height of the defect- if it is for example a sidewalk. Then take a medium shot, to so more closely the exact location, finally get a wide angel that includes specific geographic markers (particularly a house with an address.) You will need the address for a description of the specific location of where the accident occurred. Remember if it is a medical malpractice case, then you can describe the location and place, and date and time of your treatment or operation.
- Next what needs to be included in a notice of claim is the nature of your claim. This means in essence why you believe you are entitled to monetary compensation for something someone actually did wrong or failed to do, thereby breaching a duty of care to you. How were they negligent and what where the actions or omissions that caused you injury?
- Then describe your damages. If your claim is for property damage, then you can put a specific number on your damages. If your damages are for personal injury or medical malpractice, then you cannot put a specific monetary amount of the damages. What you need to know here is that you have to put down as many physical damages as you know, at the time the incident was caused (symptoms or diagnosis.)
If you initially file a notice of claim and mention you scraped your face- and later the scrape leads to scaring, or perhaps your neck does not have as much pain initially, and only until later you find out you happen to have injured this part of your body and it requires surgery – Guess what, if you simply said facial pain, scraping, and scaring, initially in your notice of claim, the attorney for the City of New York will say to the Judge – Your Honor objection! He cannot talk about his neck, his neck was not an injury included in their notice of claim! The judge may or may not agree, because the injury was to your head.
This is one of the reasons why you should provide all the information about your injuries
Although there is much information Online about how to file a notice of claim, this is why you should get a lawyer to file the notice of claim for you, and particularly as it is related to acts or omissions of the City, County, or Town. Also there may be more than one agency that needs to be notified for a medical malpractice action against a City of New York Hospital, where in addition to serving the New York City Law Department, you also have to serve Health and Hospitals Corporation.
To serve the New York City Transit Authority you have to send it certified mail with a return receipt to specific person at the agency. To file a claim against the City of New York, you can go to One Centre Street on the 12th floor in Manhattan and there file at the window or simply have your claim served on the New York City Law Department on the 4th Floor, at 100 Church Street in lower Manhattan.
Once your notice of claim is filed an investigator from the City of New York will be assigned the case
Later you will have a 50H hearing. This 50H hearing is basically a deposition or proceeding under oath. You will be asked question by a City attorney or an investigator for MTA, at 130 Livingston Street where these hearings are held (where you will be recorded and later a transcript mailed to your lawyer your review.) This is an additional reason why you should get a lawyer before your 50H hearing. If for some reason you cannot attend the first date of the hearing, you can easily get this adjourned to a date more convenient to your schedule.
For reference purposes, we have provided more information on notice of claim directly from the State of New York:
There is a law under the State of New York that provides the basis for filing a notice of claim – “NY CLS Gen Mun § 50-e (2014) – § 50-e. Notice of claim
1. When service required; time for service; upon whom service required.
(a) In any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action or special proceeding against a public corporation, as defined in the general construction law, or any officer, appointee or employee thereof, the notice of claim shall comply with and be served in accordance with the provisions of this section within ninety days after the claim arises; except that in wrongful death actions, the ninety days shall run from the appointment of a representative of the decedent’s estate.
(b) Service of the notice of claim upon an officer, appointee or employee of a public corporation shall not be a condition precedent to the commencement of an action or special proceeding against such person. If an action or special proceeding is commenced against such person, but not against the public corporation, service of the notice of claim upon the public corporation shall be required only if the corporation has a statutory obligation to indemnify such person under this chapter or any other provision of law.
2. Form of notice; contents. The notice shall be in writing, sworn to by or on behalf of the claimant, and shall set forth: (1) the name and post-office address of each claimant, and of his attorney, if any; (2) the nature of the claim; (3) the time when, the place where and the manner in which the claim arose; and (4) the items of damage or injuries claimed to have been sustained so far as then practicable but a notice with respect to a claim against a municipal corporation other than a city with a population of one million or more persons shall not state the amount of damages to which the claimant deems himself entitled, provided, however, that the municipal corporation, other than a city with a population of one million or more persons, may at any time request a supplemental claim setting forth the total damages to which the claimant deems himself entitled. A supplemental claim shall be provided by the claimant within fifteen days of the request. In the event the supplemental demand is not served within fifteen days, the court, on motion, may order that it be provided by the claimant.
3. How served; when service by mail complete; defect in manner of service; return of notice improperly served.
(a) The notice shall be served on the public corporation against which the claim is made by delivering a copy thereof personally, or by registered or certified mail, to the person designated by law as one to whom a summons in an action in the supreme court issued against such corporation may be delivered, or to an attorney regularly engaged in representing such public corporation or, in a city with a population of over one million, by electronic means in a form and manner prescribed by such city .
(b) Service by registered or certified mail shall be complete upon deposit of the notice of claim, enclosed in a postpaid properly addressed wrapper, in a post office or official depository under the exclusive care and custody of the United States post office department within the state.
© If the notice is served within the period specified by this section, but in a manner not in compliance with the provisions of this subdivision, the service shall be valid if the public corporation against which the claim is made demands that the claimant or any other person interested in the claim be examined in regard to it, or if the notice is actually received by a proper person within the time specified by this section, and the public corporation fail to return the notice, specifying the defect in the manner of service, within thirty days after the notice is received.
(d) If the notice is served within the period specified by this section and is returned for the reason and within the time provided in this subdivision, the claimant may serve a new notice in a manner complying with the provisions of this subdivision within ten days after the returned notice is received. If a new notice is so served within that period, it shall be deemed timely served.
(e) [Added, L 2010] If the notice is served by electronic means, as defined in paragraph two of subdivision (f) of rule twenty-one hundred three of the civil practice law and rules, it shall contain the information required under the provisions of subdivision two of this section. In addition, such notice shall contain the following declaration: “I certify that all information contained in this notice is true and correct to the best of my knowledge and belief. I understand that the willful making of any false statement of material fact herein will subject me to criminal penalties and civil liabilities.” Service of the notice shall be complete upon successful transmission of the notice as indicated by an electronic receipt provided by such city, which shall transmit an electronic receipt number to the claimant forthwith.
(f) Service of a notice of claim on the secretary of state as agent of any public corporation, as defined in subdivision one of section sixty-six of the general construction law, whatsoever created or existing by virtue of the laws of the state of New York upon whom service of a notice of claim is required as a condition precedent to being sued, may be made by personally delivering to and leaving with the secretary of state or a deputy, or with any person authorized by the secretary of state to receive such service, at [fig 1] the office of the department of state in the city of Albany [fig 2] , duplicate copies of such notice of claim together with the statutory fee, which fee shall be a taxable disbursement but only in the amount equal to the portion of the fee collected by the public corporation in accordance with subdivision four of this section . Service on such public corporation shall be complete when the secretary of state is so served. [fig 3] Within ten days after receiving a notice of claim, the secretary of state shall either:  send one of such copies by certified mail, return receipt requested, to such public corporation, at the post office address [fig 4] on file in the department of state, specified for the purpose; or  electronically transmit a copy to such public corporation at the electronic address on file with the department of state specified for that purpose; or  transmit a copy to such public corporation by any other such means or procedure established by the secretary of state, provided that such other means or procedure of transmittal must be verifiable .
4. Requirements of section exclusive except as to conditions precedent to liability for certain defects or snow or ice. No other or further notice, no other or further service, filing or delivery of the notice of claim, and no notice of intention to commence an action or special proceeding, shall be required as a condition to the commencement of an action or special proceeding for the enforcement of the claim; provided, however, that nothing herein contained shall be deemed to dispense with the requirement of notice of the defective, unsafe, dangerous or obstructed condition of any street, highway, bridge, culvert, sidewalk or crosswalk, or of the existence of snow or ice thereon, where such notice now is, or hereafter may be, required by law, as a condition precedent to liability for damages or injuries to person or property alleged to have been caused by such condition, and the failure or negligence to repair or remove the same after the receipt of such notice.
5. Application for leave to serve a late notice.
Upon application, the court, in its discretion, may extend the time to serve a notice of claim specified in paragraph (a) of subdivision one of this section, whether such service was made upon a public corporation or the secretary of state . The extension shall not exceed the time limited for the commencement of an action by the claimant against the public corporation. In determining whether to grant the extension, the court shall consider, in particular, whether the public corporation or its attorney or its insurance carrier acquired actual knowledge of the essential facts constituting the claim within the time specified in subdivision one of this section or within a reasonable time thereafter. The court shall also consider all other relevant facts and circumstances, including: whether the claimant was an infant, or mentally or physically incapacitated, or died before the time limited for service of the notice of claim; whether the claimant failed to serve a timely notice of claim by reason of his justifiable reliance upon settlement representations made by an authorized representative of the public corporation or its insurance carrier; whether the claimant in serving a notice of claim made an excusable error concerning the identity of the public corporation against which the claim should be asserted; if service of the notice of claim is attempted by electronic means pursuant to paragraph (e) of subdivision three of this section, whether the delay in serving the notice of claim was based upon the failure of the computer system of the city or the claimant or the attorney representing the claimant; that such claimant or attorney, as the case may be, submitted evidence or proof as is reasonable showing that (i) the submission of the claim was attempted to be electronically made in a timely manner and would have been completed but for the failure of the computer system utilized by the sender or recipient, and (ii) that upon becoming aware of both the failure of such system and the failure of the city to receive such submission, the claimant or attorney had insufficient time to make such claim within the permitted time period in a manner as otherwise prescribed by law; and whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits.
An application for leave to serve a late notice shall not be denied on the ground that it was made after commencement of an action against the public corporation.
6. Mistake, omission, irregularity or defect. At any time after the service of a notice of claim and at any stage of an action or special proceeding to which the provisions of this section are applicable, a mistake, omission, irregularity or defect made in good faith in the notice of claim required to be served by this section, not pertaining to the manner or time of service thereof, may be corrected, supplied or disregarded, as the case may be, in the discretion of the court, provided it shall appear that the other party was not prejudiced thereby.
7. Applications under this section. All applications under this section shall be made to the supreme court or to the county court: (a) in a county where the action may properly be brought for trial, (b) if an action to enforce the claim has been commenced, in the county where the action is pending, or © in the event that there is no motion term available in any of the counties specified in clause (a) or (b) hereof, in any adjoining county. Where the application is for leave to serve a late notice of claim, it shall be accompanied by a copy of the proposed notice of claim.
8. Inapplicability of section. This section shall not apply to claims arising under the provisions of the workers’ compensation law, the volunteer firefighters’ benefit law, or the volunteer ambulance workers’ benefit law or to claims against public corporations by their own infant wards.”
Nothing in this blog is intended to be formal legal advice to the specific facts of your case or claim you are always advised in all my blogs to seek the legal advice of a lawyer who understands these areas of law. Manuel Moses, Esq. 236 West 26th Street New York, New York 10001 (212) 736-2624 x11