section 50 late notice of claim in New York

2012Leave to amend the notice of claim pursuant to General Municipal Law § 50-e (6) was improperly granted since the statute only “authorizes the correction of good faith, nonprejudicial, technical defects or omissions, not substantive changes in the theory of liability” (Scott v City of New York, 40 AD3d 408, 410 [2007]).

2012It is well settled that a plaintiff may not use a bill of particulars or supplemental bill of particulars to assert new theories of liability against a municipal defendant if such theories were not raised in the plaintiffs notice of claim and the plaintiff is time-barred from serving a late notice of claim under General Municipal Law § 50-e (5) (see Semprini v Village of Southampton, 48 AD3d 543, 544 [2008]; Scott v City of New York, 40 AD3d 408, 410 [2007]; Mahase v Manhattan & Bronx Surface Tr.

2013It is well settled that the notice of claim requirements of General Municipal Law § 50-e do not apply to discrimination causes of action under the Human Rights Law inasmuch as those causes of action are not “founded upon tort” (General Municipal Law § 50-e [1] [a]; see Mills v County of Monroe, 89 AD2d 776 , 776 [1982], affd 59 NY2d 307 [1983], cert denied 464 US 1018 [1983]; Margerum v City of Buffalo, 63 AD3d 1574, 1580 [2009]; Grasso v Schenectady County Pub.

2013It is well settled that the notice of claim requirements of General Municipal Law § 50-e do not apply to discrimination causes of action under the Human Rights Law inasmuch as those causes of action are not “founded upon tort” (General Municipal Law § 50-e [1] [a]; see Mills v County of Monroe, 89 AD2d 776 , 776 [1982], affd 59 NY2d 307 [1983], cert denied 464 US 1018 [1983]; Margerum v City of Buffalo, 63 AD3d 1574, 1580 [2009]; Grasso v Schenectady County Pub.

2013It is well settled that the notice of claim requirements of General Municipal Law § 50-e do not apply to discrimination causes of action under the Human Rights Law inasmuch as those causes of action are not “founded upon tort” (General Municipal Law § 50-e [1] [a]; see Mills v County of Monroe, 89 AD2d 776 , 776 [1982], affd 59 NY2d 307 [1983], cert denied 464 US 1018 [1983]; Margerum v City of Buffalo, 63 AD3d 1574, 1580 [2009]; Grasso v Schenectady County Pub.

2013It is well settled that the notice of claim requirements of General Municipal Law § 50-e do not apply to discrimination causes of action under the Human Rights Law inasmuch as those causes of action are not “founded upon tort” (General Municipal Law § 50-e [1] [a]; see Mills v County of Monroe, 89 AD2d 776 , 776 [1982], affd 59 NY2d 307 [1983], cert denied 464 US 1018 [1983]; Margerum v City of Buffalo, 63 AD3d 1574, 1580 [2009]; Grasso v Schenectady County Pub.

2014However, since the notice requirements of General Municipal Law § 50-e only apply to state law causes of action, those requirements are not applicable to the plaintiffs first cause of action asserted pursuant to section 1983 (see Felder v Casey, 487 US 131 [1988]; Rowe v NYCPD, 85 AD3d 1001, 1002 [2d Dept 2011] [“(A) notice of claim is not a condition precedent to a cause of action, asserted pursuant to 42 USC § 1983 , which seeks to recover damages premised on violations of federal civil or constitutional rights under color of state law”]; see also Meyer v County of Suffolk, 90 AD3d 720, 722

2012To the extent that the third cause of action asserts the violation of 42 USC § 1983 and seeks attorneys’ fees pursuant to 42 USC § 1988 , we note that respondents do not contend that compliance with the notice of claim requirements in General Municipal Law §§ 50-e and 50-i is necessary to recover with respect to that cause of action (see Felder v Casey, 487 US 131, 134 [1988]; Burton v Matteliano, 81 AD3d 1272, 1275 [2011], lv denied 17 NY3d 703 [2011]; Pendleton v City of New York, 44 AD3d 733, 738 [2007]).

2016Furthermore, the plaintiff never sought leave to amend her notice of claim pursuant to General Municipal Law § 50-e (6) (see Semprini v Village of Southampton, 48 AD3d 543, 545 [2008]).

2012It is well settled that a plaintiff may not use a bill of particulars or supplemental bill of particulars to assert new theories of liability against a municipal defendant if such theories were not raised in the plaintiffs notice of claim and the plaintiff is time-barred from serving a late notice of claim under General Municipal Law § 50-e (5) (see Semprini v Village of Southampton, 48 AD3d 543, 544 [2008]; Scott v City of New York, 40 AD3d 408, 410 [2007]; Mahase v Manhattan & Bronx Surface Tr.

2012Furthermore, inasmuch as plaintiff is seeking to assert new substantive theories of liability, she is unable to amend her notice of claim under General Municipal Law § 50-e (6) (see Semprini, 48 AD3d at 544 ; Scott, 40 AD3d at 410 ; Mahase, 3 AD3d at 411 ).

2012Furthermore, inasmuch as plaintiff is seeking to assert new substantive theories of liability, she is unable to amend her notice of claim under General Municipal Law § 50-e (6) (see Semprini, 48 AD3d at 544 ; Scott, 40 AD3d at 410 ; Mahase, 3 AD3d at 411 ).

2016A timely and sufficient notice of claim is a condition precedent to asserting a tort claim against a municipality or public benefit corporation (see General Municipal Law § 50-e [1] [a]; Brown v City of New York, 95 NY2d 389, 393 [2000]).

2004General Municipal Law § 50-e (6) provides that “a mistake, omission, irregularity or defect [in the notice of claim] made in good faith . . . 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.” The point of the notice of claim requirement of General Municipal Law § 50-e is to ensure the municipal authority was given enough information about the accident to “locate the place, fix the time and understand the nature of the accident” (Brown v City of New York, 95 NY2d 389, 393 [200

2016Auth., 119 AD3d at 496 ; see Carter v City of New York, 38 AD3d 702, 703 [2007]; Harrington v City of New York, 6 AD3d 662, 662-663 [2004]).

2014Such changes 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) (see Carter v City of New York, 38 AD3d 702, 703 [2007]; Harrington v City of New York, 6 AD3d 662, 662-663 [2004]; Demorcy v City of New York, 137 AD2d 650, 651 [1988]).

2016Auth., 119 AD3d at 496 ; see Carter v City of New York, 38 AD3d 702, 703 [2007]; Harrington v City of New York, 6 AD3d 662, 662-663 [2004]).

2014Such changes 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) (see Carter v City of New York, 38 AD3d 702, 703 [2007]; Harrington v City of New York, 6 AD3d 662, 662-663 [2004]; Demorcy v City of New York, 137 AD2d 650, 651 [1988]).

2013It is well settled that the notice of claim requirements of General Municipal Law § 50-e do not apply to discrimination causes of action under the Human Rights Law inasmuch as those causes of action are not “founded upon tort” (General Municipal Law § 50-e [1] [a]; see Mills v County of Monroe, 89 AD2d 776 , 776 [1982], affd 59 NY2d 307 [1983], cert denied 464 US 1018 [1983]; Margerum v City of Buffalo, 63 AD3d 1574, 1580 [2009]; Grasso v Schenectady County Pub.

2013It is well settled that the notice of claim requirements of General Municipal Law § 50-e do not apply to discrimination causes of action under the Human Rights Law inasmuch as those causes of action are not “founded upon tort” (General Municipal Law § 50-e [1] [a]; see Mills v County of Monroe, 89 AD2d 776 , 776 [1982], affd 59 NY2d 307 [1983], cert denied 464 US 1018 [1983]; Margerum v City of Buffalo, 63 AD3d 1574, 1580 [2009]; Grasso v Schenectady County Pub.

2011“It is well settled that Supreme Court has broad discretion in deciding whether to grant an application for leave to file a late notice of claim pursuant to General Municipal Law § 50-e, providing the application is made prior to the expiration of the one year and 90-day statute of limitations” (Matter of Lanphere v County of Washington, 301 AD2d 936, 937 [2003] [citations omitted]; see General Municipal Law § 50-e [5]; § 50-i). 2 Here, we discern no abuse of Supreme Court’s discretion in resolving plaintiffs application.

2011“It is well settled that Supreme Court has broad discretion in deciding whether to grant an application for leave to file a late notice of claim pursuant to General Municipal Law § 50-e, providing the application is made prior to the expiration of the one year and 90-day statute of limitations” (Matter of Lanphere v County of Washington, 301 AD2d 936, 937 [2003] [citations omitted]; see General Municipal Law § 50-e [5]; accord Chirse v City School Dist. of Albany, 83 AD3d 1232, 1233 [2011]).

2024Ctr. , 61 NY2d 67, 72, 74 [1984] [same]; see Kealos v State of New York , 150 AD3d 1211, 1213 [2d Dept 2017]; see also Martinez v State of New York , UID No. 2019-015-183 n 2 [Ct Cl, Aug. 14, 2019] [Collins, J.]). [FN3] Thus, by operation of CPLR 204 (a), the underlying statute of limitations here was tolled from the date claimant's motion for permission to file a late claim was made (a date well before expiration of the limitations period) until June 7, 2024, the period during which such motion was pending before the Court.

2008Ctr., 61 NY2d 67, 72 [1984]; Shister v City of New York, 309 AD2d 915 [2003]; Benejan v New York City Tr.

2017Notwithstanding the above, “compliance with the notice of claim requirements of General Municipal Law § 50-e is not necessary to recover for alleged violations of a party’s civil rights under 42 USC § 1983” (Matter of Rattner v Planning Commn. of Vil. of Pleasantville, 156 AD2d 521, 525 [2d Dept 1989]).

2014The Court in Tannenbaum also cited to the Second Department’s holding in Matter of Rattner v Planning Commn. of Vil. of Pleasantville ( 156 AD2d 521, 526 [2d Dept 1989]); however, as the Fourth Department in Goodwin correctly notes, this case “held in relevant part that a notice of claim pursuant to General Municipal Law § 50-e is required for actions against individual parties where ‘it is clear that the [claims] were brought against them in their official capacities’ . . .

2016“It is well settled that key factors for the court to consider in determining an application for leave to serve a late notice of claim are whether the claimant has demonstrated a reasonable excuse for the delay, whether the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual or within a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in maintaining a defense on the merits” (Le Mieux v Alden High School, 1 AD3d 995, 996 [2003]).

2016“It is well settled that key factors for the court to consider in determining an application for leave to serve a late notice of claim are whether the claimant has demonstrated a reasonable excuse for the delay, whether the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual or within a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in maintaining a defense on the merits” (Le Mieux v Alden High School, 1 AD3d 995, 996 [2003]).

2016Corp., 76 AD3d 824 , 829 [2010]; Matter of Lauray v City of New York, 62 AD3d 467, 467 [2009]).

2016Corp., 76 AD3d 824 , 829 [2010]; Matter of Lauray v City of New York, 62 AD3d 467, 467 [2009]).

2013Lib., 30 AD3d 814, 816 [2006]; Picciano v Nassau County Civ.

2013Lib., 30 AD3d 814, 816 [2006]; Picciano v Nassau County Civ.

2013It is well settled that the notice of claim requirements of General Municipal Law § 50-e do not apply to discrimination causes of action under the Human Rights Law inasmuch as those causes of action are not “founded upon tort” (General Municipal Law § 50-e [1] [a]; see Mills v County of Monroe, 89 AD2d 776 , 776 [1982], affd 59 NY2d 307 [1983], cert denied 464 US 1018 [1983]; Margerum v City of Buffalo, 63 AD3d 1574, 1580 [2009]; Grasso v Schenectady County Pub.

2013It is well settled that the notice of claim requirements of General Municipal Law § 50-e do not apply to discrimination causes of action under the Human Rights Law inasmuch as those causes of action are not “founded upon tort” (General Municipal Law § 50-e [1] [a]; see Mills v County of Monroe, 89 AD2d 776 , 776 [1982], affd 59 NY2d 307 [1983], cert denied 464 US 1018 [1983]; Margerum v City of Buffalo, 63 AD3d 1574, 1580 [2009]; Grasso v Schenectady County Pub.

2012To the extent that the third cause of action asserts the violation of 42 USC § 1983 and seeks attorneys’ fees pursuant to 42 USC § 1988 , we note that respondents do not contend that compliance with the notice of claim requirements in General Municipal Law §§ 50-e and 50-i is necessary to recover with respect to that cause of action (see Felder v Casey, 487 US 131, 134 [1988]; Burton v Matteliano, 81 AD3d 1272, 1275 [2011], lv denied 17 NY3d 703 [2011]; Pendleton v City of New York, 44 AD3d 733, 738 [2007]).

2012To the extent that the third cause of action asserts the violation of 42 USC § 1983 and seeks attorneys’ fees pursuant to 42 USC § 1988 , we note that respondents do not contend that compliance with the notice of claim requirements in General Municipal Law §§ 50-e and 50-i is necessary to recover with respect to that cause of action (see Felder v Casey, 487 US 131, 134 [1988]; Burton v Matteliano, 81 AD3d 1272, 1275 [2011], lv denied 17 NY3d 703 [2011]; Pendleton v City of New York, 44 AD3d 733, 738 [2007]).

2012To the extent that the third cause of action asserts the violation of 42 USC § 1983 and seeks attorneys’ fees pursuant to 42 USC § 1988 , we note that respondents do not contend that compliance with the notice of claim requirements in General Municipal Law §§ 50-e and 50-i is necessary to recover with respect to that cause of action (see Felder v Casey, 487 US 131, 134 [1988]; Burton v Matteliano, 81 AD3d 1272, 1275 [2011], lv denied 17 NY3d 703 [2011]; Pendleton v City of New York, 44 AD3d 733, 738 [2007]).

2012To the extent that the third cause of action asserts the violation of 42 USC § 1983 and seeks attorneys’ fees pursuant to 42 USC § 1988 , we note that respondents do not contend that compliance with the notice of claim requirements in General Municipal Law §§ 50-e and 50-i is necessary to recover with respect to that cause of action (see Felder v Casey, 487 US 131, 134 [1988]; Burton v Matteliano, 81 AD3d 1272, 1275 [2011], lv denied 17 NY3d 703 [2011]; Pendleton v City of New York, 44 AD3d 733, 738 [2007]).

2012Although a court may properly consider whether a claimant provided a reasonable excuse for failing to serve a timely notice of claim (see Parton v Onondaga County, 81 AD3d 1433, 1433-1434 [2011]), a claimant’s failure to tender a reasonable excuse “is not fatal where . . . actual notice was had and there is no compelling showing of prejudice to [respondent]” (Matter of Hall v Madison-Oneida County Bd. of Coop.

2012Although a court may properly consider whether a claimant provided a reasonable excuse for failing to serve a timely notice of claim (see Parton v Onondaga County, 81 AD3d 1433, 1433-1434 [2011]), a claimant’s failure to tender a reasonable excuse “is not fatal where . . . actual notice was had and there is no compelling showing of prejudice to [respondent]” (Matter of Hall v Madison-Oneida County Bd. of Coop.

2006The purpose of the notice of claim provision in General Municipal Law § 50-e “is to protect the municipality against unfounded claims and to assure it ‘an adequate opportunity ... to explore the merits of the claim while information is still readily available.’ ” (See Camacho v City of New York, 187 AD2d 262, 263 [1st Dept 1992], citing Teresta v City of New York, 304 NY 440, 443 [1952].) “However, it should not operate as a device to defeat the rights of persons with legitimate claims . . .

1992Auth. ( 108 AD2d 643, 644 ): "The purpose underlying the notice of claim provision in General Municipal Law § 50-e is to protect the municipality against unfounded claims and to assure it 'an adequate opportunity * * * to explore the merits of the claim while information is still readily available’ (Teresta v City of New York, 304 NY 440, 443 ; see also, Matter of Beary v City of Rye, 44 AD2d 398, 412 ).