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A Sure-Fire Way to Kill a New York Municipal Accident Case: Don't Investigate

Given the large backlog of cases in New York's court system, many claimants urge their personal injury attorneys to try to rush their case through the system, thereby trying to minimize the time from their accident until the time they expect to be paid.

That's certainly understandable. But there are also signficant risks inherent in rushing cases into the system, because in those circumstances, the integrity of an otherwise valid claim could be compromised where the claim has not been adequately investigated.

The importance of early and thorough investigation of a claim is most acute when dealing with cases against New York municipalities, because you must file a Notice of Claim setting forth the particulars of the claim within 90 days of the occurrence. And if you fail to set forth a theory of the municipality's negligence in the Notice of Claim, the Court will likely preclude you from raising it later on - even if the theory is completely valid. (See Rosenbaum v City of New York, 8 NY3d 1, 11-13 [2006]; Sutin v Manhattan & Bronx Surface Tr. Operating Auth., 54 AD3d 616 [1st Dept 2008] [plaintiff who asserted in notice of claim that bus driver had failed to stop the bus at a place from which she could safely disembark was precluded from raising the new theory, in opposition to the defendant's motion for summary judgment, that the bus driver failed to "kneel" the bus prior to letting her off]; Chieffet v New York City Tr. Auth., 10 AD3d 526 [1st Dept 2004] [where notice of claim alleged injury due to slippery condition on staircase, plaintiff precluded from later asserting in opposition to summary judgment that the staircase was in a "broken" condition]; accord Barksdale v New York City Tr. Auth., 294 AD2d 210 [1st Dept 2002] [where notice of claim alleged negligent maintenance of safety chains between subway cars, plaintiff precluded from later asserting design defects in the gates "or other devices" between subway cars]).

The moral of the story is (or should be) clear: Make sure you adequately investigate your case before rushing in and filing your claim.

 


Jonathan Cooper
Employment Litigation and School Negligence Lawyer