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November 10, 2023

First Department Affirms Validity of Notice of Claim Filed 11 Months Late

New York General Municipal Law §50-e requires an individual bringing a claim against a public entity to file a notice of claim within 90 days after a claim arises. A court is within its discretion to grant leave to file a late notice of claim if the claimant can adequately establish (1) a reasonable excuse for failing to timely serve a notice of claim caused by mental or physical incapacity, (2) that the public corporation acquired knowledge of the facts that gave rise to the claim within the 90 day period or a reasonable time thereafter, and (3) that the delay does not substantially prejudice the pubic corporation from defending the matter on its merits. In the Matter of Jorge Benavides v. New York City Health and Hospitals Corporation, the Supreme Court, Bronx County did just that. 2023 Slip Op. 05092.

The petitioner was injured in September 2020 and was treated continuously at four separate facilities operated by the respondent. Sometime in late 2021, while at a facility run by the respondent, the petitioner learned that early in his treatment, he had suffered a stroke and was not told. The petitioner sought legal counsel and filed his notice of claim in January 2022. 

The lower court concluded that the petitioner’s notice of claim should have been filed by February 1, 2021, but granted leave to file a late notice of claim. The Appellate Division, First Department affirmed that decision. The petitioner was, and is, in continual treatment for his various injuries. He is confined to a wheelchair and has significant loss of use of his right arm and hand. Further, as the respondent continually treated the petitioner, it had knowledge of the facts giving rise to the claim. The First Department held, “[A]lthough [the notation of a stroke] does not appear to be a definitive diagnosis of an injury sustained by petitioner, it sufficiently put respondent on notice of a possible injury necessitating father inquiry.”

When evaluating whether or not a late notice of claim is likely to be held valid, public corporations should determine the merits of the underlying claim, whether the claimant was physically or mentally incapacitated, if it had prior notice of the potential claim, and if the delay will prejudice the public corporation’s defense. The best practice when faced with a late notice of claim is to challenge it, as filing a notice of claim is a condition precedent to initiating a tort action against a public corporation. 

If you have any questions regarding the content of this alert, please contact C. J. Englert, associate, at; Matthew Larkin, Torts & Products Liability Defense Practice Area chair, at; or another member of the firm’s Torts & Products Liability Defense Practice Area. 


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