The statute of limitations (time to sue) for negligence and personal injuries in NY is shortened when the defendant is a municipality such as a county, town, city or one of its agencies. There is a requirement that a notice of claim is filed notifying the municipality within 90 days after the accident (GML § 50-e)[2], and the plaintiff has one year and 90 days (365 + 90 = 455 days total) to sue (GML § 50-i).[3]
For many people, the 90-day notice of claim requirement is not reasonable for several reasons such as lack of knowledge, dealing with medical treatment and general trauma from the accident. For plaintiffs that are late to the table in getting the notice of claim filed and served, NY has a statutory provision allowing plaintiffs to move to seek leave or consent from the court to serve a late notice of claim on the municipality. The statute of limitations is tolled, meaning delayed or suspended, from the time plaintiff moves for leave to file a notice of claim until the order granting that relief goes into effect.[4] Often, the motion is filed by way of order to show cause due to the urgency.
However, what calculation is used to determine tolling of the statute of limitations when plaintiffs initial motion to file a late notice of claim is denied, and the plaintiff needs to submit another request for permission?
In Artup v. County of Westchester, et al., Ind. No. 68213/2018 (Sup Ct, Westchester County), the plaintiff claimed injuries from a four-car accident that involved a bus on January 4, 2017. Plaintiff filed an order to show cause seeking leave to file a late notice of claim on October 25, 2017, the court did not sign it until November 16, 2017, and it was served on November 17, 2017.
On February 16, 2018, the court denied plaintiffs’ application because the plaintiff did not file an affidavit of service. Plaintiff then moved to renew the application for permission to file a late notice of claim on March 14, 2018, which was granted on June 6, 2018. Plaintiff’s summons and complaint was filed on October 31, 2018.
The Artup defendants moved to dismiss the complaint for failure to file within the appropriate statute of limitations time since the complaint was filed 666 days after the accident. Plaintiff opposed arguing that the statute of limitations was tolled from when they first filed an unsigned order to show cause on October 25, 2017, through the court’s decision granting their 2nd motion on June 6, 2018.
The New York Supreme Court in Artup v. County of Westchester agreed with defendants’ and held that plaintiff’s complaint was not timely.[5] The court found that the time to sue was not tolled until the signed order to show cause was served;[6] and the time between its first decision and the plaintiff’s second application.[7]
The tolling was in effect from the date the signed order to show cause was served upon the defendant municipality through the court’s first decision (92 days), and from the time plaintiff served the second motion to renew her first application until the court’s decision on that motion (84 days). So, the statute of limitations calculation is 455 + 92 + 84 = 631 days from date of the accident; so plaintiff was 35 days too late. The case was dismissed for failure to file the complaint within the statute of limitations as it was tolled.[8]
The above favorable result for the defendants is just one an example of the intuitive thinking and swift legal action Yoars Law utilizes in the defense (or prosecution) of cases and disputes. We pride ourselves on providing our clients practical, efficient and cost-effective solutions. The defendants in the above case saved a great deal of money by not having to pay legal fees of going through costly discovery, depositions, and possible trial before getting the correct result. Peter W. Yoars, Jr., Esq. has 20 years of experience in handling personal injury cases involving municipalities and transportation systems, both for the plaintiff and defendants. Contact us today to see how we can help you achieve your desired results in and out of the courtroom.
[1] This law pertains to counties, towns, cities, and villages, and contains provisions generally applicable to such governmental entities or not specifically covered in laws only applicable to particular types of municipal corporations. NY CLS Gen Mun
[2] N.Y. Gen. Mun. Law § 50-e (Consol.)
[3] N.Y. Gen. Mun. Law § 50-i (Consol.)
[4] Giblin v. Nassau Cty. Med. Ctr., 61 N.Y.2d 67, 471 N.Y.S.2d 563, 459 N.E.2d 856 (1984)
[5] Artup v. County of Westchester, et al., Ind. No. 68213/2018 (Sup Ct, Westchester County); a copy of Justice Blackwood’s Decision and Order, dated April 2, 2019, (NY St Cts Elec Filing [NYSCEF] Doc No 29). A copy can be found at https://www.dropbox.com/s/elv8u0ngdu5uj9l/Artup%20v%20County%20of%20Westchester%2C%20et%20al%2C%20Ind%20No%2068213.2018.pdf?dl=0
[6] NYSCEF Doc No 29, Dec & Ord, pg. 4 of 5; citing Grant v. Senkowski, 95 N.Y.2d 605, 721 N.Y.S.2d 597, 744 N.E.2d 132 (2001).
[7] NYSCEF Doc No 29, Dec & Ord, pg. 4 of 5.
[8] Id., 5 of 5.