N.Y. General Municipal Law § 50-e: Notice of claim

§ 50-e. Notice of claim. 1. When service required; time for service;

upon whom service required.

(a) In any case founded upon tort where a notice of claim is required

by law as a condition precedent to the commencement of an action or

special proceeding against a public corporation, as defined in the

general construction law, or any officer, appointee or employee thereof,

the notice of claim shall comply with and be served in accordance with

the provisions of this section within ninety days after the claim

arises; except that in wrongful death actions, the ninety days shall run

from the appointment of a representative of the decedent's estate.

Notwithstanding any provision of law to the contrary, this section shall

not apply to any otherwise time-barred civil claims or causes of action

revived by section two hundred eight-a of the civil practice law and

rules. This exemption shall not apply to any claim that was timely under

the otherwise applicable statute of limitations.

(b) Service of the notice of claim upon an officer, appointee or

employee of a public corporation shall not be a condition precedent to

the commencement of an action or special proceeding against such person.

If an action or special proceeding is commenced against such person, but

not against the public corporation, service of the notice of claim upon

the public corporation shall be required only if the corporation has a

statutory obligation to indemnify such person under this chapter or any

other provision of law.

2. Form of notice; contents. The notice shall be in writing, sworn to

by or on behalf of the claimant, and shall set forth: (1) the name and

post-office address of each claimant, and of his attorney, if any; (2)

the nature of the claim; (3) the time when, the place where and the

manner in which the claim arose; and (4) the items of damage or injuries

claimed to have been sustained so far as then practicable but a notice

with respect to a claim against a municipal corporation other than a

city with a population of one million or more persons shall not state

the amount of damages to which the claimant deems himself entitled,

provided, however, that the municipal corporation, other than a city

with a population of one million or more persons, may at any time

request a supplemental claim setting forth the total damages to which

the claimant deems himself entitled. A supplemental claim shall be

provided by the claimant within fifteen days of the request. In the

event the supplemental demand is not served within fifteen days, the

court, on motion, may order that it be provided by the claimant.

3. How served; when service by mail complete; defect in manner of

service; return of notice improperly served.

(a) The notice shall be served on the public corporation against which

the claim is made by delivering a copy thereof personally, or by

registered or certified mail, to the person designated by law as one to

whom a summons in an action in the supreme court issued against such

corporation may be delivered, or to an attorney regularly engaged in

representing such public corporation or, in a city with a population of

over one million, by electronic means in a form and manner prescribed by

such city.

(b) Service by registered or certified mail shall be complete upon

deposit of the notice of claim, enclosed in a postpaid properly

addressed wrapper, in a post office or official depository under the

exclusive care and custody of the United States post office department

within the state.

(c) If the notice is served within the period specified by this

section, but in a manner not in compliance with the provisions of this

subdivision, the service shall be valid if the public corporation

against which the claim is made demands that the claimant or any other

person interested in the claim be examined in regard to it, or if the

notice is actually received by a proper person within the time specified

by this section, and the public corporation fail to return the notice,

specifying the defect in the manner of service, within thirty days after

the notice is received.

(d) If the notice is served within the period specified by this

section and is returned for the reason and within the time provided in

this subdivision, the claimant may serve a new notice in a manner

complying with the provisions of this subdivision within ten days after

the returned notice is received. If a new notice is so served within

that period, it shall be deemed timely served.

(e) If the notice is served by electronic means, as defined in

paragraph two of subdivision (f) of rule twenty-one hundred three of the

civil practice law and rules, it shall contain the information required

under the provisions of subdivision two of this section. In addition,

such notice shall contain the following declaration: "I certify that all

information contained in this notice is true and correct to the best of

my knowledge and belief. I understand that the willful making of any

false statement of material fact herein will subject me to criminal

penalties and civil liabilities." Service of the notice shall be

complete upon successful transmission of the notice as indicated by an

electronic receipt provided by such city, which shall transmit an

electronic receipt number to the claimant forthwith.

(f) Service of a notice of claim on the secretary of state as agent of

any public corporation, as defined in subdivision one of section

sixty-six of the general construction law, whatsoever created or

existing by virtue of the laws of the state of New York upon whom

service of a notice of claim is required as a condition precedent to

being sued, may be made by personally delivering to and leaving with the

secretary of state or a deputy, or with any person authorized by the

secretary of state to receive such service, at the office of the

department of state in the city of Albany, duplicate copies of such

notice of claim together with the statutory fee, which fee shall be a

taxable disbursement but only in the amount equal to the portion of the

fee collected by the public corporation in accordance with subdivision

four of this section. Service on such public corporation shall be

complete when the secretary of state is so served. Within ten days after

receiving a notice of claim, the secretary of state shall either: (1)

send one of such copies by certified mail, return receipt requested, to

such public corporation, at the post office address on file in the

department of state, specified for the purpose; or (2) electronically

transmit a copy to such public corporation at the electronic address on

file with the department of state specified for that purpose; or (3)

transmit a copy to such public corporation by any other such means or

procedure established by the secretary of state, provided that such

other means or procedure of transmittal must be verifiable.

4. Requirements of section exclusive except as to conditions precedent

to liability for certain defects or snow or ice. No other or further

notice, no other or further service, filing or delivery of the notice of

claim, and no notice of intention to commence an action or special

proceeding, shall be required as a condition to the commencement of an

action or special proceeding for the enforcement of the claim; provided,

however, that nothing herein contained shall be deemed to dispense with

the requirement of notice of the defective, unsafe, dangerous or

obstructed condition of any street, highway, bridge, culvert, sidewalk

or crosswalk, or of the existence of snow or ice thereon, where such

notice now is, or hereafter may be, required by law, as a condition

precedent to liability for damages or injuries to person or property

alleged to have been caused by such condition, and the failure or

negligence to repair or remove the same after the receipt of such

notice.

5. Application for leave to serve a late notice.

Upon application, the court, in its discretion, may extend the time to

serve a notice of claim specified in paragraph (a) of subdivision one of

this section, whether such service was made upon a public corporation or

the secretary of state. The extension shall not exceed the time limited

for the commencement of an action by the claimant against the public

corporation. In determining whether to grant the extension, the court

shall consider, in particular, whether the public corporation or its

attorney or its insurance carrier acquired actual knowledge of the

essential facts constituting the claim within the time specified in

subdivision one of this section or within a reasonable time thereafter.

The court shall also consider all other relevant facts and

circumstances, including: whether the claimant was an infant, or

mentally or physically incapacitated, or died before the time limited

for service of the notice of claim; whether the claimant failed to serve

a timely notice of claim by reason of his justifiable reliance upon

settlement representations made by an authorized representative of the

public corporation or its insurance carrier; whether the claimant in

serving a notice of claim made an excusable error concerning the

identity of the public corporation against which the claim should be

asserted; if service of the notice of claim is attempted by electronic

means pursuant to paragraph (e) of subdivision three of this section,

whether the delay in serving the notice of claim was based upon the

failure of the computer system of the city or the claimant or the

attorney representing the claimant; that such claimant or attorney, as

the case may be, submitted evidence or proof as is reasonable showing

that (i) the submission of the claim was attempted to be electronically

made in a timely manner and would have been completed but for the

failure of the computer system utilized by the sender or recipient, and

(ii) that upon becoming aware of both the failure of such system and the

failure of the city to receive such submission, the claimant or attorney

had insufficient time to make such claim within the permitted time

period in a manner as otherwise prescribed by law; and whether the delay

in serving the notice of claim substantially prejudiced the public

corporation in maintaining its defense on the merits.

An application for leave to serve a late notice shall not be denied on

the ground that it was made after commencement of an action against the

public corporation.

6. Mistake, omission, irregularity or defect. At any time after the

service of a notice of claim and at any stage of an action or special

proceeding to which the provisions of this section are applicable, a

mistake, omission, irregularity or defect made in good faith in the

notice of claim required to be served by this section, not pertaining to

the manner or time of service thereof, may be corrected, supplied or

disregarded, as the case may be, in the discretion of the court,

provided it shall appear that the other party was not prejudiced

thereby.

7. Applications under this section. All applications under this

section shall be made to the supreme court or to the county court: (a)

in a county where the action may properly be brought for trial, (b) if

an action to enforce the claim has been commenced, in the county where

the action is pending, or (c) in the event that there is no motion term

available in any of the counties specified in clause (a) or (b) hereof,

in any adjoining county. Where the application is for leave to serve a

late notice of claim, it shall be accompanied by a copy of the proposed

notice of claim.

8. Inapplicability of section. (a) This section shall not apply to

claims arising under the provisions of the workers' compensation law,

the volunteer firefighters' benefit law, or the volunteer ambulance

workers' benefit law or to claims against public corporations by their

own infant wards.

(b) This section shall not apply to: (i) any claim made for physical,

psychological, or other injury or condition suffered as a result of

conduct which would constitute a sexual offense as defined in article

one hundred thirty of the penal law committed against a child less than

eighteen years of age, incest as defined in section 255.27, 255.26 or

255.25 of the penal law committed against a child less than eighteen

years of age, or the use of a child in a sexual performance as defined

in section 263.05 of the penal law committed against a child less than

eighteen years of age; or

(ii) any civil claim or cause of action revived pursuant to section

two hundred fourteen-j of the civil practice law and rules.