Great Resource for Insurance Defense Issues
Define That Term #37

Fourth Department Considers Notice of Claim Issue

In Wall v. Erie County Med. Ctr., 2006 N.Y. Slip Op. 00736, the Fourth Department upheld the dismissal of a Complaint due to the failure to timely serve a Notice of Claim as required by General Municipal Law s. 50-e.

The decision was written in such a way that I had a hard time discerning the factual time line of this case, but I believe that the following factual recitation is correct. 

The plaintiff served a Notice of Claim more than 90 days after slipping and falling on ice.  The plaintiff then served a Summons and Complaint within 1 year and 90 days, as required by GML s. 50-i.  The plaintiff then moved for permission to serve a late notice of claim, which was granted by the lower court, but never actually served another notice of claim upon the defendant.

Upon the expiration of the statute of limitations for this action, 1 year and 90 days, the defendant moved to dismiss the plaintiff's Complaint for failure to serve a notice of claim within that time period.

The Court stated that: 

(P)laintiff's earlier service of a notice of claim is a nullity inasmuch as the notice of claim was served more than 90 days after the accident but before leave to serve a late notice of claim was granted...Contrary to plaintiff's further contention, defendants are not precluded from seeking dismissal of the complaint based upon their participation in discovery...or their request for an extension of time to answer the complaint.

Accordingly, the Court concluded that the lower court proper denied the plaintiff's "re-petition" seeking leave to serve a late notice of claim after dismissal of the Complaint.

This is a case where the failure to follow the proper procedure resulted in a very unfortunate--and very permanent--outcome.


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