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February 22, 2017

The Burdens of Proof When Petitioner Moves to Serve Late Notice of Claim

A party seeking to sue a public corporation must serve a notice of claim within 90 days of accrual. Gen. Municipal Law §50-e(1). The Court in its discretion can extend the time for service of a notice of claim. Gen. Municipal Law §50-e(5). A court is to consider whether respondent had actual knowledge of the essential facts constituting the claim, and also all other relevant facts and circumstances including certain factors provided in a non-exhaustive list recited in the statute.

In Newcomb v. Middle Country Cent. School Dist., 2016 N.Y. LEXIS 3854 (December 22, 2016), petitioners' son was hit by a car as he attempted to cross an intersection within the School District. Petitioner reported the details to his son's school. Through no fault of petitioner, nine months post-accident he was finally able to obtain a copy of an enlarged photograph showing a temporary sign which may have obstructed the driver's vision at the intersection. The sign was placed and removed by the School District, and for the first time, petitioner was able to connect the School District to the accident. Petitioner sought to serve the School District with a late notice of claim.

The Supreme Court, the Appellate Division Second Department, and the Court of Appeals each considered the same four factors in their determination. All concluded that petitioner had failed to show that the School District had actual knowledge of the accident within 90 days or a reasonable time thereafter, that there was no nexus between petitioner's son's infancy and the delay in service, and that there was a reasonable excuse for delay.

Finally, petitioner had argued that the School District would not be prejudiced by late notice. It had placed the sign at the intersection and knew that the accident occurred there. Unlike petitioner, the School District had access to the police report and photographs that would allow it to reconstruct the scene. The School District opposed petitioner's request by affirmation of counsel, arguing that it did not have actual notice of the essential facts and that the police report made no mention of the sign. It further set forth conclusory assertions that the passage of time created an inference of prejudice.

Supreme Court and the Second Department disallowed late service, holding in part that petitioner had failed to show that late notice would not substantially prejudice the School District's ability to defend itself against the claim. The Court of Appeals reversed.

The Court of Appeals noted a split among Appellate Division authority regarding the burden of proof on the issue of substantial prejudice to the public corporation. In Newcomb, the Court distinguished between petitioner's initial burden to show lack of prejudice, which can be met by presenting "some evidence" or "plausible argument" of no substantial prejudice, and respondent's burden to show actual substantial prejudice to itself. If the burden shifts to the public corporation, it cannot be met by plausible argument, inference, or assumption. The public corporation's burden can only be met by "record evidence," that is, by particularized evidence in the record.

The Court felt that the rule struck a "fair balance" because a public corporation is in the best position to know and demonstrate whether it has been substantially prejudiced by late notice. In so holding, the Court clarified its prior ruling in Williams v. Nassau Co. Med. Ctr., 6 NY 3rd 531 (2006) saying that, to the extent that Williams infers that substantial prejudice can be inferred from the passage of time, the case must be read in its particular context. Newcomb makes clear that "substantial prejudice" cannot be inferred solely from the delay in serving a notice of claim.

In responding to a petitioner's demonstration of lack of prejudice, a respondent public corporation can no longer rely on an attorney affirmation alone; it must, at the very least, present an affidavit of a representative with knowledge who can attest to actual prejudice to the public corporation should late notice be allowed.

If you require further information regarding the content of this Legal Alert, please contact either of the Co-Chairs of the Torts & Products Liability Defense Practice Area, Thomas J. Drury, at (716) 858-3845 or, or Matthew J. Larkin, at (315) 425-2805 or


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