Notice of Claim Pitfalls

A recent Third Department case, Forrest v Berlin Cent. School Dist., 2006 NY Slip Op 04124, is a great example of the dangers of proceeding pro se and the pitfalls that can be encountered when faced with the very specific Notice of Claim requirements set forth in General Municipal Law s. 50-e.

In Forrest, the pro se plaintiff alleged that he'd been defamed by employees of the defendant on October 9, 2002.  He incorrectly filed a Notice of Claim regarding the incident by filing it with the County Clerk in February of 2003, and based upon an alleged misunderstanding of the law, did not serve it upon the defendant until  October 8, 2003, nearly one year after the accrual of the cause of action.

The plaintiff subsequently moved for leave to file a late notice of claim and for leave to file a summons and amended complaint, and the trial court denied his motion.

The Third Department set forth the factors to be considered in determining whether the trial court's decision was an abuse of discretion:

The determination of such a motion is discretionary and involves consideration of several factors including, as relevant here, whether defendant acquired actual knowledge of the facts essential to the claim within 90 days after its accrual, any reasonable excuse offered for delay in filing and prejudice to defendant due to the late notice.

The Court noted that the plaintiff's alleged ignorance of the law was no excuse and that the plaintiff had failed to offer an acceptable reason for the delay.  Accordingly, the Court concluded that the trial court did not abuse its discretion when it denied the motion and that the defendant had suffered prejudice as a result of the delay:

Although defendant was aware that its employees made a report that plaintiff potentially neglected his child, and that plaintiff disagreed with that report, defendant was not aware of the facts alleged by plaintiff to support his claim, namely that this report was false and made with malice, thereby defaming plaintiff and causing him emotional injuries. Without such awareness, defendant had no reason to conduct an investigation.  (Internal citations omitted).

In a final twist of the knife, the Court noted that, in any event, the claim itself was "patently meritless" and that permitting him to serve a late notice of claim would have been "an exercise in futility."

Ouch.  It was a bad day for Mr. Forrest--a bad day, indeed.

Comments

[Greg Fischer]

Does the Notice of Claim for NY (Suffolk) have to have any particular form? In the swearing is any particuar form or language required?