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Criteria for Amendment of Notice of Claim and Serving a Late Notice of Claim Explained (Not Met Here)

The Second Department determined plaintiff’s motion to amend his notice of claim and has motion to serve a late notice of claim were properly denied.  The criteria for both motions were explained:

A notice of claim may be amended only to correct good faith and nonprejudicial technical mistakes, omissions, or defects, not to substantively change the nature of the claim ,,, . The proposed amendments to the notice of claim added events that were not described in the original notice of claim and asserted a new claim relating to the operator of the bus … . Such amendments are not technical in nature and are not permitted as late-filed amendments to a notice of claim under General Municipal Law § 50-e(6) … . …

Among the factors to be considered in determining whether to extend the time to serve a notice of claim are (1), in particular, whether the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after it arose or a reasonable time thereafter, (2) whether the claimant demonstrated a reasonable excuse for the delay in serving the notice of claim, (3) whether the claimant was an infant, or mentally or physically incapacitated, and (4) whether the delay substantially prejudiced the public corporation in defending on the merits … .

The plaintiff failed to submit evidence establishing that the Transit Authority had actual knowledge of the new facts within 90 days of the incident or a reasonable time thereafter. Priant v New York City Tr. Auth., 2015 NY Slip Op 01933, 2nd Dept 3-11-15

 

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