Wade Clark Mulcahy LLP

To maintain the right to file a tort lawsuit against a municipality or public corporation in New York, a claimant must serve a Notice of Claim within 90 days of the date of the loss pursuant to General Municipal Law §50-e. The notice must contain certain information to allow the municipality to properly investigate and assess the claim, and the failure to timely provide such information can be fatal to a subsequent lawsuit.

The Second Department recently addressed these issues in Behrens v. Town of Huntington. In that case, plaintiffs alleged that they sustained injuries while slipping on a gangway leading to floating docks. Both plaintiffs served separate but similar notices of claim near the end of the 90-day period, with the notices describing the incidents but lacking detail about the location and cause. Four months after serving the notices, the plaintiffs testified at a §50-h hearing and subsequently filed a personal injury action, claiming their falls were due to defects or substances on the gangway.

The Town moved to dismiss the claims, arguing that the notices failed to provide the specific information required under GML §50-e(2). The Supreme Court agreed and granted defendants motion, dismissing the lawsuit with prejudice.

The Second Department affirmed, holding that plaintiffs’ initial 90-day notices were not only inadequate but that a court cannot use a General Municipal Law §50-h hearing to amend or supplement the initial claim. The Court observed that a Notice of Claim is designed to allow municipalities to investigate and assess the claims and must include: i) the nature of the claim, ii) the time, iii) the place, and iv) the manner in which the claim arose. For effective notice, the municipality must be able to "locate the place, fix the time, and understand the nature of the accident," particularly for roadways and walkways due to their “transitory nature.”

The Court also observed that when considering a motion to dismiss as to a Notice of Claim, courts may review not only the notice itself but also any additional evidence presented. However, the additional evidence cannot be used to alter the fundamental nature of the claim or introduce new allegations. The Court concurred with the lower court’s decision that the original Notices of Claim did not adequately describe the location and cause of the incidents and the §50-h hearing testimony could not rectify these deficiencies.

The Behrens decision highlights the importance of evaluating the sufficiency of information provided in Notices of Claim served under the General Municipal Law and confirms that deficiencies cannot be cured with subsequent testimony in a §50-h hearing. Municipal defendants should move to dismiss a complaint where the information provided was not sufficient as a matter of law.