ACCIDENT VICTIM GOT WORKER'S COMPENSATION INSURANCE BENFITS; TRIED TO ALSO SUE NEW YORK CITY BUT "NOTICE OF CLAIM" WAS TOO LATE

Case: Singh v. City of New York

Court: Supreme Court, Appellate Division, Second Department, New York

Date: October 18, 2011

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Bronx and Queens; Queens injury attorney)

Comment: An accident victim seeking to recover from a municipality, such as the City of New York, the New York City Transit Authority, the N.Y.C. Housing Authority, the N.Y.C. Health & Hospitals Corp., etc., faces an extra legal requirement preliminary to be permitted to bring an actual personal injury lawsuit. New York State law gives municipal entities extra and early notice, so a "notice of claim" is required to be filed with the public agency within 90 days of the accident. Miss this deadline, and it can only be extended (and the accident default victim's missing of the deadline forgiven) with a super-good excuse, plus there are several required "legal hoops" to jump through. The accident victims here didn't make it through the legal hoops, and their case against the City of New York was dismissed by the appeals court.

The accident victims' stated reason for being late in making their claim was that theirs were work-related injuries and accidents and thus they received benefits from their employer's Worker's Compensation insurance. They simply were unaware that they could also sue the City of New York, and only found out and/or took action past the 90-day notice of claim filing deadline. Whoops.

Now one wonders if their lawyer contributed to the missed 90-day notice of claim deadline and, possibly, committed legal malpractice. Maybe these accidnt vicitms should have read my FREE Special Report containing Eight Questions to Ask before Hiring an Accident Lawyer.

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WORKER'S COMPENSATION CAR ACCIDENT CLAIMANT GETS INSURANCE CARRIER PERMISSION TO SETTLEMENT "NUNC PRO TUNC" (Posted By Brooklyn injury attorney Gary E. Rosenberg on Nov 29, 2011)

WORKER'S COMPENSATION CAR ACCIDENT CLAIMANT GETS INSURANCE CARRIER PERMISSION TO SETTLEMENT "NUNC PRO TUNC" (Posted By Brooklyn injury attorney Gary E. Rosenberg on Nov 29, 2011)

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In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Kerrigan, J.), entered September 21, 2010, which denied their motion pursuant to General Municipal Law ' 50-e(5) for leave to serve a late notice of claim and granted the defendant's cross motion to dismiss the complaint for failure to timely serve a notice of claim.

ORDERED that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in denying the plaintiffs' motion for leave to serve a late notice of claim upon the defendant, City of New York. The plaintiffs did not demonstrate a reasonable excuse for their failure to serve a notice of claim within 90 days after the claim arose (see General Municipal Law Sec. 50-e[5]; Matter of Welch v. New York City Hous. Auth., 7 AD3d 805). The injured plaintiff's belief that workers' compensation benefits were his sole remedy for the injury, and that he was unaware of a possible claim against the City did not constitute a reasonable excuse for the delay (see Casias v. City of New York, 39 AD3d 681, 683; Matter of Brito v. City of New York, 237 A.D.2d 286, 287; Matter of O'Dowd v. City of New York, 226 A.D.2d 642; Matter of Buddenhagen v. Town of Brookhaven, 212 A.D.2d 605, 606). Furthermore, the plaintiffs did not establish that the City "acquired actual knowledge of the essential facts constituting the claim" within 90 days after the claim arose or a reasonable time thereafter (General Municipal Law Sec. 50-e[1], [5]; see Matter of Carpenter v. City of New York, 30 AD3d 594, 595). The filing of various injury and accident reports and witness statements with the New York City Transit Authority, an entity separate from the City, did not provide the City with actual knowledge of the essential facts underlying the legal theories on which liability is now predicated against it, and failed to afford the City a sufficient opportunity to promptly investigate the claim (see Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d 138, 148; Pappalardo v. City of New York, 2 AD3d 699; Matter of Lyerly v. City of New York, 283 A.D.2d 647, 648; Matter of Ealey v. City of New York, 204 A.D.2d 720, 721). Finally, the plaintiffs failed to establish that the delay in serving the notice of claim would not substantially prejudice the City in maintaining its defense on the merits (see Williams v. Nassau County Med. Ctr., 6 NY3d 531, 539; Matter of Bush v. City of New York, 76 AD3d 628, 629; Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d at 152-153).

Since the Supreme Court providently denied the plaintiffs' motion for leave to serve a late notice of claim upon the City, and no notice of claim was timely served, the Supreme Court properly granted the City's cross motion to dismiss the complaint (see General Municipal Law Sec. 50-i; Dorce v United Rentals N. Am., Inc., 78 AD3d 1110, 1111; Laroc v. City of N.Y., 46 AD3d 760, 761).

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