Persons seeking to recover in tort against a municipality are required, as a precondition to suit, to serve a Notice of Claim within 90 days after the claim arises. Pursuant to General Municipal Law § 50-e(2), the notice must set forth the nature of the claim, and the time, place, and manner in which the claim arose. The test of the sufficiency of a notice of claim is whether it includes information sufficient to enable the public entity to locate the place, fix the time, and understand the nature of the accident. Claims of roadway, sidewalk, or similar defects must be set forth with great specificity because of their transitory nature. A court determining a motion to dismiss a complaint on the ground that the notice of claim is insufficient must examine the four corners of the notice, and may consider the testimony provided during an examination pursuant to General Municipal Law § 50-h, as well as any other evidence properly before the court. However, this evidence cannot be used to substantively change the nature of the claim or the theory of liability, since causes of action or legal theories may not be raised in the complaint or in a bill of particulars that were not directly or indirectly mentioned in the notice of claim and that change the nature of the claim or assert a new one.
Behrens v. Town of Huntington, NY Slip Op 04301 (2d Dep't August 28, 2024)
