Can a municipality legislate against filing a late Notice of Claim?

If you sue municipalities for a living, you are aware of the Notice of Claim requirements in New York. To sue towns, villages, counties and school districts under state law, you have to file such a Notice within a tight time-period, often 90 days. This becomes a problem when a potential client calls you with the deadline approaching. You might tell the client that a Notice of Claim is not required for federal claims, but you don't want to walk away from the state law claims, as well, which might include breach of contract, or state law false arrest, assault and battery. This case highlights another Notice of Claim trap for litigators. 

The case is Canario v. City of Newburgh, issued by Supreme Court, Orange County, on November 12. I represent Canario in this Article 78, which alleges that his termination from the police department was arbitrary and capricious. Canario was terminated following a Civil Service Law sec. 75 hearing at which the hearing officer concluded that Canario had unnecessarily used pepper-spray to subdue an arrestee. 

Adverse Section 75 findings are challenged pursuant to CPLR Article 78. Normally, Article 78's are filed without a Notice of Claim. But the City of Newburgh has embedded in its City Charter a Notice of Claim provision that requires such a Notice for all "action[s] or special proceeding[s]," including Article 78's. The Notices of Claim have to be filed with the City "in the same manner as a summons under the Civil Practice Law and Rules within three months after the accrual of such claim." That means you have to serve the Notice like a lawsuit; that requirement differs from state-wide Notice of Claim procedures.

The City moved to dismiss the Article 78 because we did not file a Notice of Claim. We cross-moved for leave to file a late Notice of Claim, arguing that the Article 78 petition was filed within the 90-day period (and was therefore the functional equivalent of a Notice of Claim) and the City faced no prejudice in defending the case since it had already investigated the circumstances leading up to Canario's claim. (Prejudice in defending the case is one of the arguments in favor of rejecting a late Notice of Claim). Critically, the City argued that since the City Charter contained no provision allowing for a late Notice of Claim, State Supreme Court had no authority to grant the cross-motion and the case has to be dismissed on that basis.

Provisions like the one in the Newburgh City Charter are the reasons why lawyers drink. What do you mean the City Charter contains no provision for a late Notice of Claim? After all, the General Municipal Law, which governs the filing of most Notices of Claim in New York, outlines such a procedure. Can a municipality legislate against late Notices of Claim? And what about the more stringent Notice of Claim requirements under the City Charter? Is that legal?

The more stringent requirements are legal, and cases allow municipalities to require Notices of Claim in Article 78 petitions. We normally associate Notices of Claim with slip-and-fall claims on public property, contract disputes with the county, and state-law tort claims. But the City is allowed to require them for Article 78's as well. 

This case asked whether Canario was able to file a late Notice of Claim. There was no question that the City would not have been prejudiced by a late notice. Their memo of law in support of the motion to dismiss defends against the Article 78 on the merits, and there was a full evidentiary hearing demonstrating the City was already familiar with its case against Canario. We argued that the City Charter's Notice of Claim necessarily incorporates the General Municipal Law's provision outlining a procedure for late notices of claim, which provides a multi-part standard for granting motions for late filings. 

There are no published cases that address this particular issue, so Justice Sciortino had to engage in statutory analysis. The Court also noted that, in Picciano v. Nassau County Civ. Serv. Comm., 290 A.D.2d 164 (2d Dept. 2001), "[t]he Second Department considered a motion for leave to file a late notice of claim, filed simultaneously with the complaint for violations of the Human Rights Law." In that case, the plaintiff's attorney argued that it was unclear whether a notice of claim was required, and, in any event, defendants had notice of the essential facts within 90 days of the date the cause of action accrued." As Justice Sciortino noted, "Similar to the facts at bar, neither County Law § 52 nor the Nassau County Administrative Code contained any provision for a late notice. The Court found that defendants had actual knowledge of the facts underlying the plaintiffs claim. On that basis, and because the statute was unclear regarding the need for a notice of claim in the circumstances, the Second Department found that permitting plaintiff to serve a late notice of claim was a provident exercise of its discretion." Justice Sciortino ultimately held:

In the matter at bar, the City does not seriously dispute that it lacked notice of petitioner's claims, or the facts underlying the matter. It has not alleged any prejudice that would inure to it as a result of a late filing of the notice of claim. As petitioner argued, the City's comprehensive arguments advanced in response to the merits of the petition evidences its  investigation and knowledge of the underlying facts.

In the end, Canario gets to file a Notice of Claim, and the case proceeds on the merits.