New Court of Appeals Ruling on Notice of Claim Extensions
The Court of Appeals recently ruled in Newcomb v. Middle County Central School District, 28 N.Y.3d 455, 45 N.Y.S.3d 895 (Dec. 22, 2016), that in order to receive an extension of time to file a notice of claim under General Municipal Law § 50–e(5), the plaintiff must make an initial showing that the public corporation will not be substantially prejudiced and the public corporation must then rebut that showing with particularized evidence.
Prior to the Court of Appeals’ ruling in Newcomb, there was a split in Appellate Division authority regarding which party has the burden of proof to demonstrate that a late notice of claim substantially prejudices the public corporation. While there have been decisions in all four Departments that placed the burden on the plaintiff to show a lack of substantial prejudice, there are also decisions in all four Departments that either place the burden on the public corporation or shift the burden to the corporation after the petitioner has made an initial showing of a lack of prejudice.
The Fourth Department had previously ruled in Baehre v. County of Erie, 94 A.D.2d 943, 943, 464 N.Y.S.2d 69 (4th Dept.1983), that the plaintiff was required to make an initial showing that the municipality was not prejudiced by the extension. Most recently, however, the Fourth Department ruled in Casale v. Liverpool Cent. Sch. Dist., 99 A.D.3d 1246, 951 N.Y.S.2d 439 (4th Dept.2012), that the burden was on the public corporation to make a “particularized or persuasive showing that the delay caused [it] substantial prejudice.” Id. at 1247. The other three Departments had all most recently ruled that the burden was on the plaintiff.
Significantly, the Court of Appeals unequivocally stated that an attorney affirmation is not sufficient proof to rebut a plaintiff’s initial showing that the municipality will not be burdened. The Court stated there must be a “particularized evidentiary showing that the corporation will be substantially prejudiced if the late notice is allowed.” Newcomb at 467. For public corporations within the Fourth Department, this ruling is more beneficial than the standard the Fourth Department applied in Casale, as the plaintiff must now make the initial showing of no prejudice. Nevertheless, public corporations must now ensure they meet the “particularized evidentiary showing” standard that is required to rebut the plaintiff’s initial showing, or an extension of time will be granted for the plaintiff to file a notice of claim.
Fourth Department Rulings Following Newcomb
The Fourth Department recently ruled in Diegelman v. City of Buffalo, 2017 NY Slip Op 02316 (Mar. 24, 2017). In Deigelman, the plaintiff was a police officer who brought suit against the City of Buffalo alleging he sustained damages from exposure to asbestos while an employee of the City. In determining whether to grant claimants’ application for an extension of time to file a notice of claim, the Court concluded that the trial court’s exercise of discretion in granting their application was appropriate. Although respondents did not obtain knowledge of the facts underlying the claim until approximately nine months after the expiration of the 90-day period, the Court concluded that under the circumstances of this case that this was a reasonable time, particularly in light of the fact that there was no subsequent change in the condition of the premises which might hinder the investigation or defense of the action.
Quoting Newcomb, the Fourth Department further decided that the claimants made a sufficient showing that the late notice would not substantially prejudice the City, and the City failed to “respond with a particularized evidentiary showing that [they would] be substantially prejudiced if the late notice [was] allowed.” Newcomb, 28 NY3d at 467.
Additionally, in Brege v. Town of Tonawanda, 2017 NY Slip Op 02562 (Mar. 31, 2017), the Fourth Department concluded that the trial court abused its discretion when it denied the plaintiff’s application to deem his proposed notice of claim timely served nunc pro tunc, or in the alternative, for leave to serve a late notice of claim for his claims for, inter alia, false arrest, false imprisonment and malicious prosecution, based solely on plaintiff’s failure to provide a reasonable excuse for the delay.
The Court stated that “a [plaintiff’s] failure to tender a reasonable excuse is not fatal where… actual notice was had and there is no compelling showing of prejudice to [defendant]” Brege, quoting Casale v Liverpool Cent. Sch. Dist., 99 AD3d 1246, 1246, 951 N.Y.S.2d 439. Here, the defendant had actual knowledge of the essential facts underlying those claims within the 90-day period. The Court, citing Newcomb, further determined that the plaintiff met his initial burden of showing that the late notice would not substantially prejudice defendant and, in opposition, the defendant failed to make a “particularized showing” of substantial prejudice caused by the late notice with respect to all but one of his claims.
The Fourth Department decided a third case relating to notice of claims in Kennedy v. Oswego City School District, 2017 NY Slip Op 02561 (Mar. 31, 2017). The Fourth Department found that the trial court did not err in denying the plaintiff-appellant’s application for leave to serve a late notice of claim against a school district, as he failed to show that the district had actual knowledge of the essential facts constituting the claim within 90 days of its accrual. Furthermore, even if an agent of the district timely received an accident report, it was insufficient to provide the district actual knowledge of the essential facts constituting the claim.
Additionally, the Court held that even if the plaintiff-appellant was initially unaware of the severity of his injuries, he did not offer a reasonable excuse for not seeking leave to serve a late notice of claim until nearly seven months after his surgery, and, citing Newcomb, the Court determined that he failed to meet his burden to show the late notice would not substantially prejudice the district’s ability to investigate and defend against the claim.
Additional Municipal Law Cases Recently Decided
The Fourth Department additionally ruled on two municipal law cases: Fancett v City of Syracuse, 2017 NY Slip Op 02572 (Mar. 31, 2017) and Peelle v Town of Irondequoit, 2017 NY Slip Op 02542 (Mar. 31, 2017).
In Fancett, the Court found that the defendant failed to introduce sufficient evidence to prove the precise location of a debris basin, which injured the plaintiff. The Court held that a metes and bounds description of the nearby streets, a survey map, or any instruments of conveyance establishing the boundaries of the City streets would have been sufficient evidence.
In Peelle, the plaintiffs alleged causes of action for, inter alia, negligence, trespass, nuisance, inverse condemnation, and constitutional takings. The Court found that the inverse condemnation and constitutional takings causes of action had a single accrual date, contrary to the implication of the trial court in its decision. The Fourth Department further held that the trial court properly limited plaintiffs’ recovery of monetary damages for trespass and nuisance to those incurred within one year and 90 days prior to the commencement of the action, applying the continuous wrong doctrine properly.
Prepared by Eric W. Marriott, Esq.