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


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).



Jonathan Cooper
Employment Litigation and School Negligence Lawyer