50-E - Notice of claim.

§  50-e.  Notice of claim. 1. When service required; time for service;  upon whom service required.    (a) In any case founded upon tort where a notice of claim is  required  by  law  as  a  condition  precedent to the commencement of an action or  special proceeding against a  public  corporation,  as  defined  in  the  general construction law, or any officer, appointee or employee thereof,  the  notice  of claim shall comply with and be served in accordance with  the provisions of this  section  within  ninety  days  after  the  claim  arises; except that in wrongful death actions, the ninety days shall run  from the appointment of a representative of the decedent's estate.    (b)  Service  of  the  notice  of  claim upon an officer, appointee or  employee of a public corporation shall not be a condition  precedent  to  the commencement of an action or special proceeding against such person.  If an action or special proceeding is commenced against such person, but  not  against the public corporation, service of the notice of claim upon  the public corporation shall be required only if the corporation  has  a  statutory  obligation to indemnify such person under this chapter or any  other provision of law.    2. Form of notice; contents. The notice shall be in writing, sworn  to  by  or  on behalf of the claimant, and shall set forth: (1) the name and  post-office address of each claimant, and of his attorney, if  any;  (2)  the  nature  of  the  claim;  (3) the time when, the place where and the  manner in which the claim arose; and (4) the items of damage or injuries  claimed to have been sustained so far as then practicable but  a  notice  with  respect  to  a  claim against a municipal corporation other than a  city with a population of one million or more persons  shall  not  state  the  amount  of  damages  to  which the claimant deems himself entitled,  provided, however, that the municipal corporation,  other  than  a  city  with  a  population  of  one  million  or  more persons, may at any time  request a supplemental claim setting forth the total  damages  to  which  the  claimant  deems  himself  entitled.  A  supplemental claim shall be  provided by the claimant within fifteen days  of  the  request.  In  the  event  the  supplemental  demand  is not served within fifteen days, the  court, on motion, may order that it be provided by the claimant.    3. How served; when service by mail  complete;  defect  in  manner  of  service; return of notice improperly served.    (a) The notice shall be served on the public corporation against which  the  claim  is  made  by  delivering  a  copy  thereof personally, or by  registered or certified mail, to the person designated by law as one  to  whom  a  summons  in  an action in the supreme court issued against such  corporation may be delivered, or to an  attorney  regularly  engaged  in  representing  such public corporation or, in a city with a population of  over one million, by electronic means in a form and manner prescribed by  such city.    (b) Service by registered or certified mail  shall  be  complete  upon  deposit  of  the  notice  of  claim,  enclosed  in  a  postpaid properly  addressed wrapper, in a post office or  official  depository  under  the  exclusive  care  and custody of the United States post office department  within the state.    (c) If the notice is  served  within  the  period  specified  by  this  section,  but  in a manner not in compliance with the provisions of this  subdivision, the service  shall  be  valid  if  the  public  corporation  against  which  the claim is made demands that the claimant or any other  person interested in the claim be examined in regard to it,  or  if  the  notice is actually received by a proper person within the time specified  by  this  section, and the public corporation fail to return the notice,  specifying the defect in the manner of service, within thirty days after  the notice is received.(d) If the notice is  served  within  the  period  specified  by  this  section  and  is returned for the reason and within the time provided in  this subdivision, the claimant may  serve  a  new  notice  in  a  manner  complying  with the provisions of this subdivision within ten days after  the  returned  notice  is  received. If a new notice is so served within  that period, it shall be deemed timely served.    (e) If the notice  is  served  by  electronic  means,  as  defined  in  paragraph two of subdivision (f) of rule twenty-one hundred three of the  civil  practice law and rules, it shall contain the information required  under the provisions of subdivision two of this  section.  In  addition,  such notice shall contain the following declaration: "I certify that all  information  contained in this notice is true and correct to the best of  my knowledge and belief. I understand that the  willful  making  of  any  false  statement  of  material  fact  herein will subject me to criminal  penalties and  civil  liabilities."  Service  of  the  notice  shall  be  complete  upon  successful transmission of the notice as indicated by an  electronic receipt provided  by  such  city,  which  shall  transmit  an  electronic receipt number to the claimant forthwith.    4. Requirements of section exclusive except as to conditions precedent  to  liability  for  certain  defects or snow or ice. No other or further  notice, no other or further service, filing or delivery of the notice of  claim, and no notice of intention  to  commence  an  action  or  special  proceeding,  shall  be required as a condition to the commencement of an  action or special proceeding for the enforcement of the claim; provided,  however, that nothing herein contained shall be deemed to dispense  with  the  requirement  of  notice  of  the  defective,  unsafe,  dangerous or  obstructed condition of any street, highway, bridge,  culvert,  sidewalk  or  crosswalk,  or  of  the existence of snow or ice thereon, where such  notice now is, or hereafter may be, required  by  law,  as  a  condition  precedent  to  liability  for  damages or injuries to person or property  alleged to have been caused  by  such  condition,  and  the  failure  or  negligence  to  repair  or  remove  the  same  after the receipt of such  notice.    5. Application for leave to serve a late notice.    Upon application, the court, in its discretion, may extend the time to  serve a notice of claim specified in paragraph (a) of subdivision one of  this section. The extension shall not exceed the time  limited  for  the  commencement   of   an   action  by  the  claimant  against  the  public  corporation. In determining whether to grant the  extension,  the  court  shall  consider,  in  particular,  whether the public corporation or its  attorney or its insurance  carrier  acquired  actual  knowledge  of  the  essential  facts  constituting  the  claim  within the time specified in  subdivision one of this section or within a reasonable time  thereafter.  The   court   shall   also   consider   all  other  relevant  facts  and  circumstances,  including:  whether  the  claimant  was  an  infant,  or  mentally  or  physically  incapacitated, or died before the time limited  for service of the notice of claim; whether the claimant failed to serve  a timely notice of claim by reason  of  his  justifiable  reliance  upon  settlement  representations  made by an authorized representative of the  public corporation or its insurance carrier;  whether  the  claimant  in  serving  a  notice  of  claim  made  an  excusable  error concerning the  identity of the public corporation against which  the  claim  should  be  asserted;  if  service of the notice of claim is attempted by electronic  means pursuant to paragraph (e) of subdivision three  of  this  section,  whether  the  delay  in  serving  the notice of claim was based upon the  failure of the computer system of  the  city  or  the  claimant  or  the  attorney  representing  the claimant; that such claimant or attorney, as  the case may be, submitted evidence or proof as  is  reasonable  showingthat  (i) the submission of the claim was attempted to be electronically  made in a timely manner and  would  have  been  completed  but  for  the  failure  of the computer system utilized by the sender or recipient, and  (ii) that upon becoming aware of both the failure of such system and the  failure of the city to receive such submission, the claimant or attorney  had  insufficient  time  to  make  such  claim within the permitted time  period in a manner as otherwise prescribed by law; and whether the delay  in serving the notice  of  claim  substantially  prejudiced  the  public  corporation in maintaining its defense on the merits.    An application for leave to serve a late notice shall not be denied on  the  ground that it was made after commencement of an action against the  public corporation.    6. Mistake, omission, irregularity or defect. At any  time  after  the  service  of  a  notice of claim and at any stage of an action or special  proceeding to which the provisions of this  section  are  applicable,  a  mistake,  omission,  irregularity  or  defect  made in good faith in the  notice of claim required to be served by this section, not pertaining to  the manner or time of service thereof, may  be  corrected,  supplied  or  disregarded,  as  the  case  may  be,  in  the  discretion of the court,  provided it shall  appear  that  the  other  party  was  not  prejudiced  thereby.    7.  Applications  under  this  section.  All  applications  under this  section shall be made to the supreme court or to the county  court:  (a)  in  a  county where the action may properly be brought for trial, (b) if  an action to enforce the claim has been commenced, in the  county  where  the  action is pending, or (c) in the event that there is no motion term  available in any of the counties specified in clause (a) or (b)  hereof,  in  any  adjoining county. Where the application is for leave to serve a  late notice of claim, it shall be accompanied by a copy of the  proposed  notice of claim.    8.  Inapplicability of section. This section shall not apply to claims  arising under the provisions  of  the  workers'  compensation  law,  the  volunteer firefighters' benefit law, or the volunteer ambulance workers'  benefit law or to claims against public corporations by their own infant  wards.