Q. What is a “notice of claim”, and when is one required?

A notice of claim is a legal document that New York law requires be prepared and served as a condition to precedent to later bringing a lawsuit for damages against a municipal or other governmental entity.

A “notice of claim” is intended to do exactly what its name implies – provide advanced notice to a governmental entity, prior to the commencement of an actual lawsuit, that it may be subject to a claim for damages.  The primary purpose of the notice of claim requirement is to promptly alert municipal entities to potential claims and afford them an adequate opportunity to investigate the circumstances and merits of the claim while witnesses, documents, and other information is still readily available.

New York is home to a variety of governmental and quasi-governmental entities commonly referred to as “public corporations.” In addition to familiar municipal subdivisions, such as counties, cities, towns, and villages, there are also school districts, fire districts, water and sewer districts, and a variety of public benefit corporations.  While each of these entities are governed by different statutes, they all generally require service of a notice of claim as a condition precedent to later bringing a lawsuit for damages.

Where a notice of claim is otherwise required by law, General Municipal Law § 50-e addresses the content, service, and time limits of such notices “in any case founded upon tort.”  A tort is basically a civil wrong which causes injury or damages to another person, and can either be unintentional (negligence) or intentional (defamation, assault) in nature.  A notice of claim must be writing (i.e., oral notice will not suffice), and the truth of its contents must be sworn to by the claimant.  While no particular form is required, the notice of claim must at least include (a) the name and address of the claimant and his or her attorney, if any; (b) the nature of the claim; (c) the time when, the place where, and the manner in which the claim arose; and (d) the items of damage or injuries claimed to have been sustained so far as then known.

Once prepared, the notice of claim must be served on the public corporation, either by personal delivery or by registered or certified mail.  The notice cannot just be delivered or mailed to anyone, however – the General Municipal Law requires that it be delivered or mailed to a person “designated by law” to receive service on behalf of the public corporation.  The person or persons in that position may vary by entity, so it is important to verify that the notice is provided to the correct individual.

The law provides for only a relatively short period of time to serve a notice of claim.  Under General Municipal Law §50-e, a notice of claim founded upon tort must be served within ninety (90) days after the claim arises.  If a valid notice is not properly served within that ninety day period, the claimant may be precluded from later commencing a lawsuit and, as a result, may lose out on any award of damages to which he or she may otherwise be legally entitled.

While General Municipal Law § 50-e governs notices of claim relating to torts, other New York statutes may impose notice of claim requirements as to other types of claims.  Education Law § 3813, for example, generally requires that a notice of claim be served upon a school district with respect to all types of claims, including contract based claims, within three months after the claim arises.  Separate notice and timing requirements also apply to claims against the State of New York.

Given the variety of municipal, governmental, and quasi-governmental entities that exist in New York, combined with the variety of different statutes that may impose a notice of claim requirement, the best course of action to take after an accident or other event which causes injuries or damage is to consider – very early on – (a) whether any potentially responsible parties are, or may be, governmental or quasi-governmental in nature, and (b) if so, whether there are any notice of claim requirements that apply to that type of entity.  If the matter is in doubt, the safest course is to err on the side of caution and serve a notice of claim.

While not required, it is often advisable to consult with an attorney in connection with a proposed notice of claim.  An attorney can assist in identifying potentially liable parties, in determining whether claims against any of those parties are subject to notice of claim requirements, in drafting a legally sufficient notice which includes all required information, and in ensuring that the notice is properly and timely delivered or mailed to the correct individual.

Written by Christopher P. Langlois