Wade Clark Mulcahy LLP

A notice of claim is a crucial element for bringing a lawsuit against a municipality, and of course, it is in fact fatal not to serve one. It is possible to serve one late with permission of the court, which will depend on various factors whether or not they deem it permissible. But what happens if you have filed one timely, but later want to add a new claim for the same cause of action after the time to file passes? In most litigations, you can often get around this through the relation back doctrine, if you can demonstrate that the party had sufficient notice to expect being served. This can be true with a late notice of claim… But only if you give them enough information to be put on notice. Specifically in this case, even if they are already on notice of a claim, that may not be sufficient to give a municipality sufficient notice of a different cause of action for the same claim.

P. v City of New York, et al. was a Second Department case that dealt with a minor Plaintiff who was injured when she fell of the school bleachers during gym class. Initially, P’s parents filed a timely notice of claim against the city, alleging that the school failed to properly maintain the bleachers. Over a year later, Plaintiff filed an amended notice of claim, adding in a further cause of action for negligent supervision. While they did not initially move the Court for permission to do so, they did after the fact. While the lower court initially granted the motion, it was reversed on appeal, denying the motion and rejecting the amended notice of claim. The Court noted multiple factors that are to be considered when considering whether or not to accept a late notice of claim, such as reasonable excuse for failing to serve it timely and if the municipality was prejudiced by the delay, but the most critical factor is determining if the notice of claim sufficiently gave the municipality actual knowledge of the essential facts of the claim. In this particular case, the Second Department found Plaintiff’s parents failed to do any of these. They gave no reasonable excuse for failing to serve a notice of claim for negligent supervision in a timely manner nor did they properly show no prejudice the city. Most importantly, however, they failed to provide sufficient facts for the negligent supervision claim. All they did was demonstrate that the infant was injured when she fell off the bleachers during gym class; no facts were shown how she was negligently supervised by the school staff.

This case clearly demonstrates the three most important factors to keep in mind when preparing a notice of claim: (1) be timely, as failing to do is fatal to your case,( 2) be specific with your facts; the less ambiguity and greater clarity, the better, and (3) to avoid making the mistakes P’s parents did, make sure to lay out every possible claim you may pursue in one notice of claim.