You are here: / / Notice of Claim Timely Served by an Unauthorized Method Deemed Valid/Motion...
, ,

Notice of Claim Timely Served by an Unauthorized Method Deemed Valid/Motion to Renew Based Upon Information Known at the Time of the Original Motion Properly Heard in Exercise of Discretion

The First Department determined the savings provision of General Municipal Law 50-e applied and a notice of claim which was timely served by an unauthorized method was valid.  The court noted that a motion court can exercise its discretion to hear a motion to renew which relies on information known but not raised at the time the original motion was made:

Although the motion was based on information that was available to plaintiff earlier, “courts have discretion to consider such evidence in the interest of justice” … .

Defendant moved for summary judgment on the ground that plaintiff’s notice of claim was not served within the 90-day period set forth in General Municipal Law § 50-e, and plaintiff had not timely moved for an extension of time to serve. Plaintiff contended that she qualified under either or both prongs of the “savings provision” under General Municipal Law § 50-e(3)(c), which provides that “[i]f 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. . .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 fails to return the notice, specifying the defect in the manner of service, within thirty days after the notice is received.”

Moreover, “[t]he purpose of a notice of claim is to allow the municipal defendant to make a prompt investigation of the facts and preserve the relevant evidence. The applicable statute should be applies flexibly so as to balance two countervailing interests: on the hand, protecting municipal defendants from stale or frivolous claims, and on the other hand, ensuring that a meritorious case is not dismissed for a ministerial error. General Municipal Law § 50-e was not meant as a sword to cut down honest claims, but merely as a shield to protect municipalities against spurious ones” … .

Here, the record shows that plaintiff served a notice of claim on defendant on December 8, 2011 via regular mail, which did not comply with the requirement that service be completed in person or via registered or certified mail. However, defendant subsequently demanded that plaintiff appear for examinations pursuant to General Municipal Law § 50-h with regard to her claim. Under such circumstances, plaintiff’s service of the notice of claim is valid under the first prong of General Municipal Law § 50-e(3)(c). Person v New York City Hous. Auth., 2015 NY Slip Op 05417, 1st Dept 6-23-15

 

 

You might also like
Court Has Inherent Authority to Reinstate Indictment After Dismissal for Legal Insufficiency
Where Equitable Relief Described in “Sole Remedy Clause” is Impossible, Monetary Damages Are Available
$1 MILLION ATTORNEY’S FEE REQUEST CUT IN HALF BY SURROGATE’S COURT AND REDUCED A FURTHER $100,000 BY THE FIRST DEPT CITING EXCESSIVE CHARGES FOR IN-FIRM DISCUSSIONS AND UNNECESSARY WORK (FIRST DEPT).
A Contract Between a Hospital and a Security Company Was Not Invalidated by the Failure to Spell Out the Duties of the Security Personnel—Missing Element Filled in by Conduct; Interplay of Contract and Tort Liability to Third Parties Discussed
Failure to Make Clear in the Jury Instructions that the Acquittal on the Top Count Based Upon the Justification Defense Required Acquittal on the Lesser Counts As Well Rendered the Verdict “Ambiguous”—New Trial Ordered in the Interest of Justice
A NOTICE OF LIEN CAN NOT BE DISCHARGED ABSENT A TRIAL IF IT IS VALID ON ITS FACE (FIRST DEPT).
NO PROOF NOTE WAS IN POSSESSION OF PLAINTIFF WHEN THE ACTION WAS COMMENCED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).
PLAINTIFF ALLEGED THE COLLAPSE OF A CEILING CAUSED A BULGING DISC IN HER SPINE; SUPREME COURT HELD THE SURGERY TO REPAIR THE DISC CONSTITUTED SPOLIATION OF EVIDENCE AND PROHIBITED PLAINTIFF FROM INTRODUCING ANY EVIDENCE OF THE SPINE INJURY; THE 1ST DEPARTMENT REVERSED HOLDING THAT A SPOLIATION ANALYSIS CANNOT BE APPLIED TO MEDICAL TREATMENT (FIRST DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Defendant’s Waiver of 12-Person Jury Upheld Criteria for Liability for Acts of Independent Contractor and for Negligent...