Construction Worker’s Case Allowed to Proceed Even After Notice of Claim Was Filed a Day Late

construction accident lawyer New York CityA Notice of Claim is a legal document that the State of New York requires to be prepared and served prior to bringing a lawsuit for damages against a municipal or government entity. The purpose is to provide advanced notice to such agencies that they may be sued for such damages and afford them time to investigate the circumstances and merits of potential claims while the information is still readily available. In New York, the notice of claim must be filed within 90 days from the event giving rise to the cause of action.


In a recent case, the Appellate Division First Department found that a construction worker’s notice of claim was timely, even though it was filed a day after the statutory deadline. The case involved an injured construction worker who was injured at a construction site.  After reviewing the facts of the case, the Court unanimously held that his late service of the claim on defendant City University Construction Fund (CUCF) was sufficient.


In determining whether to allow the late service of the claim, the court looked at: (1) whether the corporation had actual knowledge of the essential facts within the 90 day period; (2) whether the plaintiff offered a reasonable excuse for the late notice; and (3) whether the delay prejudiced the defendant.


As to the first question, the court found the late notice sufficient considering it was only one day late and therefore, allotted the defendant substantially similar notice as to a claim filed within 90 days.  As to the second question, the court recognized that plaintiff’s excuse that the process server made a clerical error was reasonable and not fatal to the claim.  Lastly, the court found that the defendant was not prejudiced by the late filing. The court primarily relied on the fact that the one-day delay would have little effect on the investigative portion of the claim.  The court opined that the one-day delay would not affect a witness’ memory of relevant events or an investigators ability to obtain relevant information.  Therefore, although the notice of claim was filed outside of the 90 day period, the court allowed the plaintiff’s claim to proceed.


To read the full decision click here.


Even though the court found in this limited instance that the late notice of claim was acceptable, timely bringing a claim could be the difference between collecting for your injuries or suffering from injuries without receiving any recovery. If you or a loved one have been injured due to intentional action or negligence of another, contact an experienced New York construction accident and personal injury attorney. The attorneys at Levine & Slavit, PLLC have over 50 years of experience representing clients in personal injury actions. With offices conveniently located in Manhattan and Long Island, Levine & Slavit, PLLC represents clients throughout New York City and both Nassau and Suffolk counties. For more information and to schedule a consultation, call (888) LAW-8088.

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