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PETITIONER POLICE OFFICER WAS TERMINATED FOR MISCONDUCT AND SOUGHT TO BRING A CPLR ARTICLE 78 PROCEEDING; THE CITY CHARTER REQUIRED THE FILING OF A NOTICE OF CLAIM AS A CONDITION PRECEDENT FOR ANY NONTORT ACTION AGAINST THE CITY; PETITIONER FAILED TO TIMELY FILE A NOTICE OF CLAIM; BECAUSE THE CHARTER MAKES NO PROVISION FOR SERVING A LATE NOTICE OF CLAIM IN NONTORT ACTIONS, SUPREME COURT DID NOT HAVE AUTHORITY TO GRANT PETITONER’S REQUEST FOR PERMISSION TO SERVE A LATE NOTICE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the court did not have the authority to grant the petitioner, a police officer terminated for misconduct, an extension of time to file a late notice of claim against the city. The city charter did not have a provision for service of a late notice for nontort actions. Petitioner was attempting to bring a CPLR article 78 proceeding contesting his termination:

Section C6.47(A) of the City Charter for the City of Newburgh provides that, for nontort claims, no action or special proceeding shall be maintained against the City unless “a written verified claim . . . was served on the City . . . within three months after the accrual of such claim.” The service of a notice of claim is thus a condition precedent to maintaining an action or proceeding against the City … . “[S]tatutory requirements conditioning suit against a governmental entity must be strictly construed” … .

Here, it is undisputed that the petitioner failed to serve a notice of claim within three months after his claim accrued, as required by section C6.47 of the City Charter for the City of Newburgh. Moreover, unlike other notice statutes, section C6.47 of the City Charter for the City of Newburgh does not provide courts with the authority to extend the time for the service of a notice of claim arising upon nontort claims … . Consequently, since this proceeding is not founded upon tort, the Supreme Court was without authority to grant the petitioner’s motion for leave to serve a late notice of claim … . Matter of Canario v City of Newburgh, 2026 NY Slip Op 04945, Second Dept 8-12-26

Practice Point: If the controlling legislation, here a city charter, makes no provision allowing a party to seek permission to serve of a late notice of claim, a court cannot grant such permission. Here the city charter did not include a “late notice” provision for nontort actions against the city.

 

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