BILL NUMBER:  S5097

 TITLE OF BILL :  An act to amend the general municipal law, in
relation to service of certain notices of claim

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of his Advisory
Committee on Civil Practice.

This measure would amend section 50-e(3)(c) of the General Municipal
Law to provide that service of a notice of claim upon the incorrect
municipal entity will be deemed compliant with the statute when (1)
the correct entity is timely apprised of the notice of claim, and (2)
that entity or one acting on its behalf or with its knowledge demands
that the claimant or another individual with knowledge be examined
with respect to the matter.

This measure also would amend section 50-e(1)(b) to clarify those
circumstances in which a plaintiff who also wishes to directly sue an
employee of the public corporation must identify the employee by name
in the notice of claim. This proposed amendment would provide that
such identification is not required unless (1) the plaintiff knew or
could have with due diligence discovered the individual's name within
the time allotted for service of the notice of claim, and (2) the
public entity was prejudiced in its investigation by reason of the
plaintiff's failure to identify the individual by name in the notice
              

of claim.

 CURRENT LAW REGARDING GML § 50-E(3)(C) (SERVICE ISSUE) :

Section 50-e(3)(c) of the General Municipal Law provides that when a
notice of claim is timely served "but in a manner not in compliance
with the provisions of this subdivision." service is nonetheless valid
"if the public corporation against which the claim is made demands
that the claimant or any other person interested in the claim be
examined in regard to it."

Although that provision could conceivably have been construed to
permit commencement of an action where the plaintiff timely served the
"wrong" municipal entity but the "right" municipal entity was timely
apprised of the claim (as would occur if the wrong entity timely
forwarded the notice to the right entity), the Court of Appeals ruled
otherwise in Scantlebury v New York City Health and Hosps. Corp., 4
NY3d 606 120051 The Court there held that the provision applies only
in the instance in which the plaintiff served the correct entity but
did so incorrectly. The Court reasoned that if the provision had been
"intended to relieve a plaintiff from the consequences of serving a
notice of claim on the wrong public entity, one would expect to find
some comment somewhere in the legislative history to this effect" (4
NY3d at 613).

So, in Scantlebury itself, where the plaintiff intended to sue the New
York City Health and Hospitals Corporation ("HHC") but instead served
her notice of claim on the Comptroller of the City of New York, HHC
was deemed entitled to summary judgment for that reason even though
(1) it timely learned of the claim, and (2) it demanded and received
an examination of the plaintiff pursuant to section 50-h of the
General Municipal Law.

It should be noted that the impact of Scantlebury was partly
ameliorated by a 2012 amendment, which created a mechanism by which
the plaintiff could file the notice of claim with the Secretary of
State in lieu of serving it upon the municipal entity. L. 2012, c.
500. The problem, however, is that many plaintiffs continue to serve
the entity itself, or try to do so; and that, in such cases, the
plaintiffs generally have no idea of the service defect until the time
to correct it has passed. In such cases, the municipal entities
continue to prevail as a matter of law even in those instances in
which they were timely apprised of and in fact investigated the claim.

 THE PROPOSED AMENDMENT OF GML § 50-E(3)(C) (SERVICE ISSUE) :

This measure reflects a compromise. A municipal entity that was timely
apprised of the claim could no longer obtain dismissal based upon the
service defect if it or another entity acting on its behalf or with
its knowledge demanded that the plaintiff or another person with
knowledge appear for a General Municipal Law section 50-h examination.

 CURRENT LAW RECORDING GML & 50-E(1)(B) (NAMING ISSUE) :

Although plaintiffs will often choose not to directly sue the
municipal employee in those instances in which the public corporation
would stand vicariously liable for the employee's conduct, plaintiffs
sometimes seek to sue the employee as well. This occurs, for example,
in some cases involving alleged police misconduct, motor vehicle
accidents and, also, in some medical malpractice actions.

While current section 50-e(1)(b) of the General Municipal Law
specifies those circumstances in which a plaintiff who sues only the
employee, and not the employer must serve a notice of claim, it does
not specify whether the employee must be identified by name in those
cases in which the plaintiff sues the public corporation as well as
the employee.

This raises an issue that has given rise to split of authority between
the Departments of the Appellate Division. The First Department has
ruled that "General Municipal Law § 50-e makes unauthorized an action
against individuals who have not been named in a notice of claim."
Tannenbaum v City of New York, 30 AD3d 357, 358 (1st Dept 2006). The
Third and. Fourth Departments have reached the opposite conclusion.
Goodwin, 105 AD3d 207, 216 (4th Dept 2013); Pierce v Hickey, 129 AD3d
1287 (3d Dept 2015). Although the Second Department has apparently not
addressed the issue recently, it, too, has subscribed to the latter
view. Schiavone v Nassau County, 51 AD2d 980, 981 (2d Dept 1976),
aff'd 41 NY2d 844 (1977).

It should be noted that the dispute relates solely to the content
required in the notice of claim, not to the persons on whom it must be
served or the manner in which it must be served. With respect to those
cases in which the plaintiff wants to sue the public corporation and
an employee of the corporation, it is clear in all Departments that a
notice of claim is required (since the public corporation is itself a
defendant) and that the notice is served only upon the public
corporation itself.

 THE PROPOSED AMENDMENT OF GML 4 50-E(1)(B) (NAMING ISSUE) :

Once again, this measure reflects a compromise. Rather than requiring
that an employee be identified by name in the notice of claim in order
for the plaintiff to directly sue that individual (the First
Department rule), or not imposing such a requirement (the Third and
Fourth Department view), this measure would provide that such is not
required unless (1) the plaintiff knew or with due diligence could
have timely discovered the individual's name, and (2) the public
corporation was thereby prejudiced in its investigation of the claim.

In our view, this measure strikes a sensible and fair balance between
the competing concerns, and, second, it recognizes that the public
corporation is best situated to show that it was prejudiced (as
opposed to the plaintiff having to prove the negative). The last
sentence of the proposed addition to section 50-e(1(b) is to make
clear that the specified requirements concerning identification of the
allegedly culpable employees are not intended to affect the different
issue of whether the notice of claim is sufficient to permit suit
against the public corporation itself.

This measure, which would have no fiscal impact, would take effect on
January first after becoming law and apply to all notices of claim
served on that date or thereafter.

 LEGISLATIVE HISTORY :

None. New proposal.