Where Notice of Claim is Required, Late Notice & Typos Can Jeopardize Your Civil Lawsuit

In Lastihenos v. The Town of North Hempstead, a woman fell and was injured while walking on a sidewalk near Mitch & Toni’s American Bistro in Albertson, NY. In late November 2012, she served notices of claim to the Town of Hempstead and Nassau County. In December 2012, the plaintiff served a notice of claim to the Town of North Hempstead after discovering the wrong town was served. The incident occurred on August 28, 2012, but each notice of claim incorrectly stated April 18, 2012.

When it comes to civil lawsuits against state and local governments, meeting deadlines is extremely important. Under General Municipal Law Section 50-i, a notice of claim is required to begin a civil lawsuit for personal injury against the local government. If the notice is not served within 90 days of the incident, the case may be dismissed.

Since the date of the incident was wrong, the notice of claim to the County was late. The notice to North Hempstead was also late. The plaintiff argued that the mistake was a typo and moved to change the date in the notices to August 28, 2012. She also requested an extension to serve a late notice of claim on North Hempstead. Both Nassau County and the Town of North Hempstead opposed plaintiff’s motion.

As long as an honest mistake was made and the government is not negatively affected by the change, a court can allow a modification to a notice of claim (Section 50-e(6)). A court can also grant an extension for a late notice of claim (Section 50-e(5)). A few factors the court considers in making its decision to allow the late notice are:

• Was there a reasonable excuse for the delay?
• Did the government have actual knowledge of the important facts during the 90-day period or soon thereafter?
• Did the late notice weaken the government’s ability to defend itself?

North Hempstead argued that the “typo” was a law office failure—not an honest, good faith mistake. They also argued that serving the notice to the wrong town was another law office failure and a bad excuse. Both Nassau County and the Town of North Hempstead argued that they had no actual knowledge of the claims because the notice was late. Since the sidewalk was fixed and they could no longer investigate, the County and North Hempstead argued that the late notice weakened their ability to defend the claims.

The Court agreed with Nassau County and the Town of North Hempstead and denied the plaintiff’s motion.