I think I missed the deadline to file a notice of claim. Is there anything I can do?
In last month’s column, we discussed the requirement under New York law that a written notice of claim be prepared and served as a condition precedent to later bringing a lawsuit for damages against a municipal or other governmental entity. The deadline to file a notice of claim is short – typically no later than ninety (90) days after the claim arises – and if that deadline is missed any subsequent lawsuit may be subject to dismissal.
It is not uncommon for people – especially those who haven’t yet retained a personal injury lawyer — to miss the ninety-day deadline to serve a notice of claim. If that happens, though, all is not necessarily lost. Subject to certain limitations, a Court has the discretion to grant a person leave (that is, permission) to file a late notice of claim. Leave to serve a late notice of claim is not, however, granted merely for the asking. Instead, the Court is required to consider a number of different factors which, taken together, may weigh either in favor of or against granting leave.
Could the Court Grant You Leave?
One factor which is generally given the most weight is whether or not the municipal or government entity (or its attorney or insurance carrier) acquired actual knowledge of the essential facts constituting the claim within ninety days after the claim first arose, or within a reasonable time thereafter. For obvious reasons, the lack of a timely notice of claim is less significant if it can be shown that the municipality was already otherwise aware of the facts giving rise to the claim since the municipality’s opportunity to conduct a timely investigation – should it wish to do so — is not compromised. “Actual knowledge of the facts” can often be established by showing that the municipality was in possession of an accident report or other documents which provided basic information about the event giving rise to the claim.
Other factors generally considered include whether the claimant has a reasonable excuse for failing to timely serve the notice of claim; the length of the delay; and whether the delay in serving the notice of claim has substantially prejudiced the municipality in its ability to maintain a defense of the claim.
What constitutes a “reasonable” excuse will vary from case to case. A reasonable excuse will often be found where it can be shown that the claimant was suffering from some sort of disability (physical, mental, or age) which either made it impossible or at the very least difficult to meet the notice of claim deadline. On the other hand, some excuses are regularly rejected as not reasonable – including the frequently offered excuse that the claimant was simply unaware of the notice of claim requirement.
Time Matters When Filing a Claim
While a Court has wide discretion in deciding whether or not to grant leave to serve a late notice of claim based on all the facts and circumstances, there is a very important limitation on the Court’s authority – the Court cannot grant leave if the time to sue under the applicable statute of limitations has already expired. This most often becomes an issue where a claimant waits to file a lawsuit until the statute of limitations has almost run. For example, assume a claimant — who neglected to first serve a notice of claim — timely files a lawsuit against a municipality for an accidental injury on the last day of the applicable one year and the ninety-day statute of limitations. One month later – after the statute of limitations has now expired – the municipality moves to dismiss the lawsuit on the ground that no notice of claim was filed. Because the statute of limitations has expired, the Court would not have the authority to grant leave to file a late notice of claim and would be compelled to dismiss the lawsuit – even if the claimant had an unquestionably reasonable excuse for the delay in serving the notice of claim and even if it was admitted that the municipality had actual and immediate knowledge of the facts giving rise to the claim. As this example shows, waiting until the last minute to file a lawsuit can sometimes create otherwise avoidable problems.
Of course, serving a timely notice of claim in the first place is always better than having to rely on the uncertain outcome of a motion to serve a late notice of claim. However, if you have missed the notice of claim deadline – and assuming the underlying statute of limitations hasn’t already expired – leave to serve a late notice of claim may still be available to preserve your right to pursue a lawsuit.
Are you looking for a personal injury lawyer who can help you file your claim on time? Get in touch with Girvin & Ferlazzo, PC for a free confidential consultation on your case.