Why a Child's Age Is No (Valid) Excuse for Failing to Timely File a Notice of Claim in New York

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I've been asked, more than once, why it is so important for parents to assure that a public school or other New York municipality, receives formal written notice of their child's injury claim as soon as possible after an accident.

Unfortunately, here's where a little knowledge is dangerous.

It is certainly true that New York's Civil Practice Law & Rules ("CPLR") Section 208 tolls the time within which a child must bring the lawsuit until the child is no longer an "infant," i.e., under 18 years of age. But - and here's the important point - the time within which a Notice of Claim must be filed (which is within 90 days of the occurrence) is NOT tolled.

As noted in "The Most Critical Mistake to Avoid When Suing a New York Municipality," if a parent fails to file the requisite Notice of Claim, all hope is not (necessarily) lost. That is, so long as less than 1 year and 90 days have passed from the date of the incident. In that case, you can file a formal application with the court requesting that it extend your time to file the Notice of Claim, and so long as you have a reasonable excuse for the delay, the application will, as a general rule, be granted. On the other hand, missing that deadline can prove fatal to a child's injury case. As one of New York's appellate courts noted:

"A claimant's infancy will automatically toll the applicable one year and 90-day statute of limitations for commencing an action against a municipality (see General Municipal Law § 50-i; Henry v. City of New York, 94 N.Y.2d 275, 702 N.Y.S.2d 580, 724 N.E.2d 372). However, the factor of infancy alone does not compel the granting of a motion for leave to serve a late notice of claim." Rennell S. v. North Junior High School, 12 A.D.3d 518, 784 N.Y.S.2d 623 (2d Dept. 2004).





Author of the Free consumer guide to New York accident cases, "Why Most Accident Victims Do Not Recover the Full Value of Their Claim," Long Island and Queens, New York school negligence, school injury, negligent supervision and child injury lawyer Jonathan Cooper is available to answer your questions regarding school liability for negligence under New York law. For additional information on these topics, please feel free to contact his main office in Nassau County, Long Island at 516-791-5700.

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