No Reasonable Excuse for 90-Day Delay in 90-Day Notice
While the focus for our purposes is all things Labor Law, it’s important to remember that there are other laws out there, including the General Municipal Law.
Details regarding the subject incident for this case are scant, and for our purposes, they aren’t particularly relevant in this matter. According to underlying motion papers, plaintiff was working atop a six-story high scaffold at a renovation project at a school in Queens, New York. During the course of his work, plaintiff alleges, he was injured when he tripped and fell on broken bricks and construction debris located on an elevated working surface upon which he was working.
As a result, in Charlot v. City of New York, 2024 NY Slip Op 03161, plaintiff commenced a lawsuit, alleging violations of Labor Law §§ 200, 240(1) and 241(6). Notably, plaintiff commenced the action against several municipal defendants, including The City of New York, The Board of Education of the City of New York, and the New York City School Construction Authority, as these are the entities that are the owners/operators of the school property involved in the renovation undertaking.
Switching gears from facts to statutes, we look to New York’s General Municipal Law (“GMU”), specifically section 50-e(1)(a), which governs the Notice of Claim required for suing municipal entities, and its timeliness. In relevant part, it states:
- When service required; time for service; upon whom service required.
(a) In any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action or special proceeding against a public corporation, as defined in the general construction law, or any officer, appointee or employee thereof, the notice of claim shall comply with and be served in accordance with the provisions of this section within ninety days after the claim arises; except that in wrongful death actions, the ninety days shall run from the appointment of a representative of the decedent’s estate. (emphasis added)
In essence, if you are a plaintiff, bringing a lawsuit, and it involves a municipality, it requires a special kind of notice called the “notice of claim.” Failure to timely serve the notice of claim can be detrimental to a plaintiff’s claim, though as with all things legal, exceptions do exist.
In Charlot, the subject incident occurred on December 8, 2020. Ninety days from that date is March 8, 2021. Plaintiff served the notice of claim on the municipality defendants on June 8, 2021, approximately 92-days past the 90-day deadline.
Now, pursuant to GMU § 50-e(5), the Court has the authority to extend the deadline upon a showing, inter alia, by plaintiff setting forth a “reasonable excuse” for the failure to timely serve the 90-day notice of claim. In Charlot, plaintiff asserted that he was “not aware of” a potential cause of action against the defendants as the excuse for serving the notice of claim late, which the Court found was insufficient.
We note that plaintiff had subsequently moved to have the late notice of claim deemed timely served nunc pro tunc[1], but that motion was made on or about April 27, 2022, approximately seven months after the 90-day notice deadline has passed. The court rejected that attempt at correcting the late notice via motion, because plaintiff failed to offer any explanation for the additional delay of “approximately seven months between the service of the late notices of claim” and the filing of the motion.
As a result, the Appellate Division, Second Department unanimously upheld the Supreme Court, Queens County decision that denied plaintiff’s motion to cure the late notice and granted plaintiff’s motion to dismiss plaintiff’s complaint for failure to timely serve notice of claim.
The Charlot decision can be found here.
For additional information, contact Philip D. Priore, Esq. and/or Michael J. Shields, Esq.
This article was prepared by McCormick & Priore, P.C. to provide information on recent legal developments of interest to our readers. This publication is in no way intended to provide legal advice or to create an attorney-client relationship. All Rights Reserved. This article may not be reprinted without the express written permission of McCormick & Priore, P.C.
[1] No, this isn’t a typo. This is Latin for “now for then,” which, generally, refers to an action taken by the court that applies retroactively correcting an earlier date of an order, judgment, or filing of a document.
