Why Wrongful Death Claims Allow for More Than 1 Year & 90 Days to Sue a NY Municipality
As noted in "Why a Child's Age is No (Valid) Excuse For Failing to Timely File a Notice of Claim in NY," there are some exceptions to the general rule that a Notice of Claim must be filed within 90 days of an occurrence in New York. One such exception is where the statute of limitations is tolled (i.e., stayed) pending the resolution of the claimant's disability, which may be one of several categories set forth in Civil Practice Law & Rules section 208, including insanity, or something as mundane as infancy.
But there is another important, albeit (thank G-d) infrequent exception: where the claim is for wrongful death.
NY Gen. Mun. Law Sec. 50-i provides that in those circumstances, the representatives of the decedent have two (2) years, as opposed to the standard one year and 90 days, to bring the claim. See, .
There is an important caveat to this rule, however:
Just because your time within which to commence a formal law suit against the municipality may be longer, doesn't necessarily mean that your time within which to file and serve the Notice of Claim (which remains a condition precedent to suit) will automatically be granted; the claimant will still have the burden to show a reasonable excuse for the tardiness of the Notice of Claim, and the Court will still have discretion as to whether to grant the application for leave to file a late of Notice of Claim.
In the words of an appellate court:
"In determining whether to grant leave to serve a late notice of claim, the court must consider certain factors, including, inter alia, whether an infant is involved, whether the claimant has demonstrated a reasonable excuse for failing to timely serve a notice of claim,whether the respondents acquired actual knowledge of the facts constituting the claim within 90 days from its accrual or a reasonable time thereafter, and whether the respondents-respondents were substantially prejudiced by the delay ( see General Municipal Law § 50–e; Matter of Brown v. County of Westchester, 293 A.D.2d 748, 741 N.Y.S.2d 281; Matter of Fierro v. City of New York, 271 A.D.2d 608, 609, 706 N.Y.S.2d 451)."