AN ACT to amend the general municipal law, in relation to tolling for the period of the infancy of the claimant the requirement that a notice of claim against a public corporation be served within ninety days after a tort claim arises

LAWS & SECTIONS REFERRED TO: General Municpal Law §50-e

THIS BILL IS DISAPPROVED

        This bill would amend the General Municipal Law so as to provide that the infancy of a claimant, traditionally one of many considerations in the determination of whether to grant an extension of time within which to file a notice of claim against a municipality or municipal entity, would be a mandatory toll for the length of the infancy.

        The General Municipal Law’s notice of claim requirement is not a statute of limitations. It is a condition precedent to suit (see, e.g., Rodriguez v. City of N.Y., 169 A.D.2d 532 [1^st Dept. 1991]), a mandate by the state that before suit against a sovereign entity be brought, notice of the claim be given in a timely manner.

        The purpose of the notice of claim as a condition precedent is to allow municipalities, besieged by innumerable lawsuits arising under an enormous variety of circumstances and from far-flung sources for tort liability, to be forewarned of coming lawsuits so as to enable the municipality to promptly investigation the circumstances and prepare a defense or settle (see, e.g., Cheung v. New York City Transit Auth., 208 A.D.2d 669 [2d Dept. 1994], lv den 85 N.Y.2d 811 [1995]; Bullard v. City of N.Y., 118 A.D.2d 447 [1^st Dept. 1986] [concurring op. Of Kassal, J.]). This bill would vitiate that laudatory purpose in circumstances involving infants. It would permit filing notice of claim until three months after the infant claimant becomes of majority, virtually assuring that the municipality will be unable to identify the source of, e.g., the liquid on the stairwell upon which plaintiff fell; whether such liquid ever existed; indeed, whether plaintiff was injured at that location at all.

        Infancy has traditionally been treated as a consideration in the Court’s determination as to whether or not to extend the time within which to file a notice of claim (General Municipal Law §50-e[5]). Many other considerations go into that determination. The courts have recognized many circumstances which would warrant an extension of time for an infant to file a notice of claim, even where the period of delay was lengthy (see, e.g., Matter of Stanley v. City of N.Y., 684 N.Y.2d 522 [1^st Dept. 1999]; Holmes v. New York City Housing Auth., 201 A.D.2d 650 [2^nd Dept. 1994]; Brown v. New York City Housing Auth., 194 A.D.2d 667 [2d Dept. 1993]; Trejo v. City of N.Y., 156 A.D.2d 164 [1^st Dept. 1989]). By contrast, some circumstances simply do not warrant extension of that statutory period even where an infant is involved (see, e.g., Matter of Davis v. New York City Housing Auth., 233 A.D.2d 110 [1^st Dept. 1996]; Matter of Matarrese v. New York City Health & Hosps. Corp., 215 A.D.2d [2d Dept. 1995], lv den 87 N.Y.2d 810 [1996]; Matter of Danjou v. New York City Health & Hosps. Corp., 196 A.D.2d 818 [2d Dept. 1993], lv den 83 N.Y.2d 796 [1994]). Retaining this discretion on the part of the court provides the flexibility to preserve claims to infants under appropriate circumstances, bearing in mind the potential prejudice to overburdened municipalities and municipal entities in investigating ancient claims. No sufficient reason has been given to warrant changing the existing law so dramatically as to create a new absolute toll.

For the foregoing reasons, this bill is DISAPPROVED

Person Who Prepared The Report: David B. Hamm, Esq.