Senate Bill S2394

2009-2010 Legislative Session

Establishes criteria for notice to be filed and served when done by electronic means in N.Y. city

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Archive: Last Bill Status - Stricken

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
May 11, 2009	recommit, enacting clause stricken
Feb 19, 2009	referred to cities

co-Sponsors

2009-S2394 (ACTIVE) - Details

See Assembly Version of this Bill:: A2575
Law Section:: General Municipal Law
Laws Affected:: Amd §50-e, Gen Muni L

2009-S2394 (ACTIVE) - Summary

Establishes criteria for notice to be filed and served when done by electronic means in a city having a population of more than one million; provides for an application for leave to serve a late notice.

2009-S2394 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S2394

 TITLE OF BILL :
An act to amend the general municipal law, in relation to establishing
criteria for notice of claim to be filed and served when done by
electronic means in a city having a population of over one million


 PURPOSE :
To require any city with a population of over one million inhabitants
to accept service of a notice of claim filed by electronic means.

 SUMMARY OF PROVISIONS :
Section one amends section 50-e of the General Municipal Law by adding
a new paragraph (e) to subdivision 3 to allow a notice of claim to be
filed electronically through the Internet in any city with a
population of over one million. The new section would also provide
that any notice of claim that is filed by electronic means shall
contain the same information as required for a written notice and a
declaration certifying the truth of the contents of the notice.

Section two amends subdivision 5 of section 50-e of the General
Municipal Law by authorizing the courts, when considering whether to
grant a motion to a claimant who applies to the court to file a late
notice of claim, to consider whether claimant's failure to file a
timely notice of claim was due to the technical failure of the

computer system of the public corporation, the claimant or the
claimant's attorney. The claimant or attorney must provide sufficient
proof that the electronic service was attempted in a timely manner.

Section three sets forth the effective date of the bill.

 JUSTIFICATION :
Filing a Notice of Claim is a prerequisite to the commencement of a
tort-based action against a public corporation.  When claims are
against a public corporation, such as New York City, the provisions of
section 50-e of the General Municipal Law control.  Currently, section
50-e (3) of the General Municipal Law requires service of the Notice
of Claim to be made personally, or by registered or certified mail.

In light of new technology and the public's increasing reliance on the
Internet, claimants or their attorneys may benefit from the ease of
electronically filing their Notice of Claim. Not only will filing the
Notice of Claim electronically result in a faster and less costly
means of transmission, but also, and perhaps more importantly, a means
that is less prone to human error. Moreover, both the public
corporation and the public will benefit because the public corporation
will be able to store and manage records in a more efficient manner.

New York has realized the practical and beneficial effects of using
technology in the service process of various types of claims. For
example, in 1989, an amendment was made to CPLR 2103 (b)(5) to allow
attorneys to serve court papers via facsimile. Further, in 1999, an
amendment was made to CPLR 2103(b)(7) to allow service via electronic
means, which now allows service of court papers by attorneys over the
Internet. More recently, in 2003, the New York State Court of Claims
began the Filing by Electronic Means pilot project, which allows
certain claims to be filed and served via e-mail. To date, the pilot
project is still running.

In 2006, a similar bill was vetoed on the grounds that the bill could
inadvertently increase the number of motions to file a late notice
since there was no means to ascertain whether a filing, delay was, in
fact, due to a computer system failure. The current bill addresses
this concern.

Moreover, due to concerns that many public corporations throughout the
State, especially those who retain private attorneys to represent the
public corporation, may not be prepared to adopt this new process,
this bill will be limited to notices of claim served upon any city
with a population of over one million inhabitants.

 LEGISLATIVE HISTORY :
2007; A.8996-A/S.6122- Passed Assembly/S. Rules Committee 2006 -
A.11919; Veto Memo
317

 FISCAL IMPLICATIONS :
None.

 EFFECTIVE DATE :
On the one hundred and eightieth day after it shall have become law.

2009-S2394 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  2394

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                            February 19, 2009
                               ___________

Introduced by Sens. DeFRANCISCO, VOLKER -- read twice and ordered print-
  ed, and when printed to be committed to the Committee on Cities

AN  ACT  to amend the general municipal law, in relation to establishing
  criteria for notice of claim to be filed and served when done by elec-
  tronic means in a city having a population of over one million

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Paragraph  (a)  of  subdivision  3 of section 50-e of the
general municipal law, as amended by chapter 745 of the laws of 1976, is
amended and a new paragraph (e) is added to read as follows:
  (a) The notice shall be served on the public corporation against which
the claim is made by delivering a copy thereof personally, or by  regis-
tered  or certified mail, to the person designated by law as one to whom
a summons in an action in the supreme court issued against  such  corpo-
ration  may be delivered, or to an attorney regularly engaged in repres-
enting such public corporation OR, IN A CITY WITH A POPULATION  OF  OVER
ONE MILLION, BY ELECTRONIC MEANS IN A FORM AND MANNER PRESCRIBED BY SUCH
CITY.
  (E)  IF  THE NOTICE IS SERVED BY ELECTRONIC MEANS, AS DEFINED IN PARA-
GRAPH TWO OF SUBDIVISION (F) OF RULE TWENTY-ONE  HUNDRED  THREE  OF  THE
CIVIL  PRACTICE LAW AND RULES, IT SHALL CONTAIN THE INFORMATION REQUIRED
UNDER THE PROVISIONS OF SUBDIVISION TWO OF THIS  SECTION.  IN  ADDITION,
SUCH NOTICE SHALL CONTAIN THE FOLLOWING DECLARATION: "I CERTIFY THAT ALL
INFORMATION  CONTAINED IN THIS NOTICE IS TRUE AND CORRECT TO THE BEST OF
MY KNOWLEDGE AND BELIEF. I UNDERSTAND THAT THE  WILLFUL  MAKING  OF  ANY
FALSE  STATEMENT  OF  MATERIAL  FACT  HEREIN WILL SUBJECT ME TO CRIMINAL
PENALTIES AND CIVIL LIABILITIES."    SERVICE  OF  THE  NOTICE  SHALL  BE
COMPLETE  UPON  SUCCESSFUL TRANSMISSION OF THE NOTICE AS INDICATED BY AN
ELECTRONIC RECEIPT PROVIDED BY SUCH CITY, WHICH SHALL TRANSMIT AN  ELEC-
TRONIC RECEIPT NUMBER TO THE CLAIMANT FORTHWITH.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01596-01-9

S. 2394                             2

  S  2.  Subdivision  5 of section 50-e of the general municipal law, as
amended by chapter 745 of the laws  of  1976,  is  amended  to  read  as
follows:
  5. Application for leave to serve a late notice.
  Upon application, the court, in its discretion, may extend the time to
serve a notice of claim specified in paragraph (a) of subdivision one OF
THIS  SECTION.  The  extension shall not exceed the time limited for the
commencement of an action by the  claimant  against  the  public  corpo-
ration.  In  determining whether to grant the extension, the court shall
consider, in particular, whether the public corporation or its  attorney
or  its  insurance  carrier  acquired  actual knowledge of the essential
facts constituting the claim within the time  specified  in  subdivision
one  OF  THIS  SECTION or within a reasonable time thereafter. The court
shall also consider all other relevant facts and circumstances,  includ-
ing: whether the claimant was an infant, or mentally or physically inca-
pacitated,  or died before the time limited for service of the notice of
claim; whether the claimant failed to serve a timely notice of claim  by
reason  of his justifiable reliance upon settlement representations made
by an authorized representative of the public corporation or its  insur-
ance  carrier; whether the claimant in serving a notice of claim made an
excusable error  concerning  the  identity  of  the  public  corporation
against  which the claim should be asserted; IF SERVICE OF THE NOTICE OF
CLAIM IS ATTEMPTED BY ELECTRONIC MEANS  PURSUANT  TO  PARAGRAPH  (E)  OF
SUBDIVISION  THREE  OF  THIS  SECTION,  WHETHER THE DELAY IN SERVING THE
NOTICE OF CLAIM WAS BASED UPON THE FAILURE OF THE COMPUTER SYSTEM OF THE
CITY OR THE CLAIMANT OR THE ATTORNEY  REPRESENTING  THE  CLAIMANT;  THAT
SUCH  CLAIMANT  OR  ATTORNEY,  AS THE CASE MAY BE, SUBMITTED EVIDENCE OR
PROOF AS IS REASONABLE SHOWING THAT (I) THE SUBMISSION OF THE CLAIM  WAS
ATTEMPTED  TO  BE  ELECTRONICALLY MADE IN A TIMELY MANNER AND WOULD HAVE
BEEN COMPLETED BUT FOR THE FAILURE OF THE COMPUTER  SYSTEM  UTILIZED  BY
THE  SENDER  OR RECIPIENT, AND (II) THAT UPON BECOMING AWARE OF BOTH THE
FAILURE OF SUCH SYSTEM AND THE FAILURE  OF  THE  CITY  TO  RECEIVE  SUCH
SUBMISSION,  THE CLAIMANT OR ATTORNEY HAD INSUFFICIENT TIME TO MAKE SUCH
CLAIM WITHIN  THE  PERMITTED  TIME  PERIOD  IN  A  MANNER  AS  OTHERWISE
PRESCRIBED  BY LAW; and whether the delay in serving the notice of claim
substantially prejudiced  the  public  corporation  in  maintaining  its
defense on the merits.
  An application for leave to serve a late notice shall not be denied on
the  ground that it was made after commencement of an action against the
public corporation.
  S 3. This act shall take effect on the one hundred eightieth day after
it shall have become a law.

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Senate Bill S2394

Sponsored By

Archive: Last Bill Status - Stricken

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co-Sponsors

2009-S2394 (ACTIVE) - Details

2009-S2394 (ACTIVE) - Summary

2009-S2394 (ACTIVE) - Sponsor Memo

2009-S2394 (ACTIVE) - Bill Text download pdf

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Sponsored By

John A. DeFrancisco

Archive: Last Bill Status - Stricken

Actions

co-Sponsors

Dale M. Volker

2009-S2394 (ACTIVE) - Details

2009-S2394 (ACTIVE) - Summary

2009-S2394 (ACTIVE) - Sponsor Memo

2009-S2394 (ACTIVE) - Bill Text download pdf

Comments