Practice point: In order to commence a tort action against a municipality, General
Municipal Law § 50-e(1)(a) requires a claimant to serve a notice of
claim upon that municipality within 90 days after the date that the
claim arose. General Municipal Law § 50-e(5) permits a court, in its discretion, to extend the time to serve a notice of claim. Whether the public corporation acquired timely
actual knowledge of the essential facts constituting the claim within 90
days after the claim arose or a reasonable time thereafter is seen as a
factor which should be accorded great weight in determining whether or
not to grant leave to serve a late notice of claim. In order to have actual knowledge of the essential facts
constituting the claim, the public corporation must have knowledge of
the facts that underlie the legal theory or theories on which liability
is predicated in the notice of claim; the public corporation need not
have specific notice of the theory or theories themselves.
Student note: Other factors a court must consider in determining whether to grant leave to serve a late notice of claim are: (1) whether the claimant was an infant or mentally or physically incapacitated; (2) whether the claimant had a reasonable excuse for the failure to serve a timely notice of claim; and (3) whether the delay would substantially prejudice the public corporation in maintaining its defense (see General Municipal Law § 50-e[5].
Case: Kellman v. Hauppauge Union Free School Dist., NY Slip Op 05844 (2d Dept. 2014)
