Bill Text: NY S02155 | 2013-2014 | General Assembly | Introduced
Bill Title: Relates to the filing of notices of claim prior to the commencement of a cause of action against any state or municipal entity, public authority or public benefit corporation; amends chapter 500 of the laws of 2012, amending the civil practice law and rules, the general municipal law, the environmental conservation law, the public authorities law, the education law, the mental hygiene law, the private housing finance law, the facilities development corporation act, the administrative code of the city of New York, and chapter 154 of the laws of 1921 relating to the port authority of New York and New Jersey, relating to establishing a uniform process and requirement for the filing of notices of claim prior to the commencement of a cause of action against any state or municipal entity, public authority or public benefit corporation, in relation to the effectiveness thereof.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2013-04-24 - SUBSTITUTED BY A1051 [S02155 Detail]
Download: New_York-2013-S02155-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
2155
2013-2014 Regular Sessions
I N S E N A T E
January 14, 2013
___________
Introduced by Sen. MARTINS -- read twice and ordered printed, and when
printed to be committed to the Committee on Judiciary
AN ACT to amend the civil practice law and rules, the general municipal
law and the New York city health and hospitals corporation act, in
relation to the filing of notices of claim prior to the commencement
of a cause of action against any state or municipal entity, public
authority or public benefit corporation; and to amend chapter 500 of
the laws of 2012, amending the civil practice law and rules and other
laws, relating to establishing a uniform process and requirement for
the filing of notices of claim prior to the commencement of a cause of
action against any state or municipal entity, public authority or
public benefit corporation, in relation to the effectiveness thereof
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Section 217-a of the civil practice law and rules, as added
2 by chapter 500 of the laws of 2012, is amended to read as follows:
3 S 217-a. Actions to be commenced within one year and ninety days.
4 Notwithstanding any other provision of law to the contrary, and irre-
5 spective of whether the relevant statute is expressly amended by
6 [sections three through seventy-nine of] the uniform notice of claim
7 act, every action for damages or injuries to real or personal property,
8 or for the destruction thereof, or for personal injuries or wrongful
9 death, against any political subdivision of the state, or any instrumen-
10 tality or agency of the state or a political subdivision, any public
11 authority or any public benefit corporation that is entitled to receive
12 a notice of claim as a condition precedent to commencement of an action,
13 shall not be commenced unless a notice of claim shall have been served
14 on such governmental entity within the time limit established by SECTION
15 FIFTY-E OF THE GENERAL MUNICIPAL LAW, and SUCH ACTION MUST BE COMMENCED
16 in compliance with all the requirements of section fifty-e AND SUBDIVI-
17 SION ONE OF SECTION FIFTY-I of the general municipal law. Except in an
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD05824-01-3
S. 2155 2
1 action for wrongful death against such an entity, an action for damages
2 or for injuries to real or personal property, or for the destruction
3 thereof, or for personal injuries, alleged to have been sustained, shall
4 not be commenced more than one year and ninety days after the cause of
5 action therefor shall have accrued or within the time period otherwise
6 prescribed by any special provision of law, whichever is longer. Noth-
7 ing herein is intended to amend the court of claims act or any provision
8 thereof.
9 S 2. Paragraph (f) of subdivision 3 of section 50-e of the general
10 municipal law, as added by chapter 500 of the laws of 2012, is amended
11 to read as follows:
12 (f) Service of a notice of claim on the secretary of state as agent of
13 any public corporation, AS DEFINED IN SUBDIVISION ONE OF SECTION SIXTY-
14 SIX OF THE GENERAL CONSTRUCTION LAW, whatsoever created or existing by
15 virtue of the laws of the state of New York upon whom service of a
16 notice of claim is required as a condition precedent to being sued, may
17 be made by personally delivering to and leaving with the secretary of
18 state or a deputy, or with any person authorized by the secretary of
19 state to receive such service, at [any] THE office of the department of
20 state in the city of Albany [or at one of his or her regularly estab-
21 lished offices], duplicate copies of such notice of claim together with
22 the statutory fee, which fee shall be a taxable disbursement BUT ONLY IN
23 THE AMOUNT EQUAL TO THE PORTION OF THE FEE COLLECTED BY THE PUBLIC
24 CORPORATION IN ACCORDANCE WITH SUBDIVISION FOUR OF THIS SECTION.
25 Service on such public corporation shall be complete when the secretary
26 of state is so served. [The secretary of state shall promptly] WITHIN
27 TEN DAYS AFTER RECEIVING A NOTICE OF CLAIM, THE SECRETARY OF STATE SHALL
28 EITHER: (1) send one of such copies by certified mail, return receipt
29 requested, to such public corporation, at the post office address[,] on
30 file in the department of state, specified for the purpose; OR (2) ELEC-
31 TRONICALLY TRANSMIT A COPY TO SUCH PUBLIC CORPORATION AT THE ELECTRONIC
32 ADDRESS ON FILE WITH THE DEPARTMENT OF STATE SPECIFIED FOR THAT PURPOSE;
33 OR (3) TRANSMIT A COPY TO SUCH PUBLIC CORPORATION BY ANY OTHER SUCH
34 MEANS OR PROCEDURE ESTABLISHED BY THE SECRETARY OF STATE, PROVIDED THAT
35 SUCH OTHER MEANS OR PROCEDURE OF TRANSMITTAL MUST BE VERIFIABLE.
36 S 3. Section 53 of the general municipal law, as added by chapter 500
37 of the laws of 2012, is amended to read as follows:
38 S 53. Alternative service of notice of claim upon the secretary of
39 state. 1. In lieu of serving a notice of claim upon a public corporation
40 as provided for in section fifty-e of this article, a notice of claim
41 setting forth the same information as required by such section may be
42 served upon the secretary of state in the same manner as if served with
43 the public corporation. All the requirements relating to the form,
44 content, time limitations, exceptions, extensions and any other proce-
45 dural requirements imposed in such section with respect to a notice of
46 claim served upon a public corporation shall correspondingly apply to a
47 notice of claim served upon the secretary of state as permitted by this
48 section. For purposes of this article, the secretary of state shall be
49 deemed to be the agent for all public corporations upon whom a notice of
50 claim may be served prior to commencement of any action or proceeding
51 subject to the requirements of this article.
52 2. [The secretary of state shall designate an office within the
53 department of state whereat persons are entitled by law to timely serve
54 a notice of claim upon the secretary of state as the agent for a public
55 corporation as a condition precedent to commencement of an action or
56 proceeding.] All public corporations entitled to have served upon them a
S. 2155 3
1 notice of claim as a condition precedent to commencement of an action or
2 proceeding shall, no later than thirty days after the date upon which
3 this section shall take effect, file a certificate with the secretary of
4 state designating the secretary as the agent for service of a notice of
5 claim and shall in such statement provide the secretary with the name,
6 POST OFFICE ADDRESS and ELECTRONIC MAIL address, IF AVAILABLE, of an
7 officer, person, or designee, nominee or other agent-in-fact for the
8 transmittal of notices of claim served upon the secretary as the public
9 corporation's agent. Any designated [post-office] POST OFFICE address OR
10 ELECTRONIC MAIL ADDRESS to which the secretary of state shall [mail]
11 TRANSMIT a copy of the notice of claim served upon him or her as agent
12 shall continue to be the address to which such notices shall be [mailed]
13 TRANSMITTED until the public corporation sends a notice to the secretary
14 informing him or her of a new POST OFFICE address OR ELECTRONIC MAIL
15 ADDRESS to which such notices shall be [mailed] TRANSMITTED. The initial
16 filing with the secretary of state shall also contain the applicable
17 time limit for filing a notice of claim upon that public corporation, or
18 if later changed by statute, a new filing shall be made detailing the
19 [altered] NEW time limit. Any public corporation [who] THAT does not
20 have a current and timely statutory designation filed with the secretary
21 of state shall not be entitled to the portion of the fee to which it
22 would otherwise be entitled pursuant to subdivision four of this
23 section. Failure of the public corporation to so file with the secretary
24 of state will not invalidate any service of a notice of claim upon the
25 public corporation which has been received by the secretary of state.
26 3. The secretary of state is hereby empowered to accept properly tran-
27 smitted notices of claims on behalf of a public corporation, with the
28 same effect as if served directly upon a public corporation. The secre-
29 tary of state shall accept such service upon the following terms and
30 conditions:
31 (a) the secretary of state shall set and notify the public, on his or
32 her website, [as to reasonable] OF times, places and manner of service
33 upon him or her of notices of claims NECESSARY TO COMPLY WITH THE
34 PROVISIONS OF THIS SECTION;
35 (b) upon receipt of a notice of claim, the secretary of state shall
36 issue a receipt or other document acknowledging his or her receipt of
37 such notice, and such receipt shall contain the date and time of receipt
38 of the notice, an identifying number or name particular to the notice
39 received, and the logo or seal of the department of state embossed upon
40 it. Such receipt shall be prima facie evidence of service upon the
41 secretary of state for all purposes;
42 (c) [within ten days after receiving the notice of claim, the secre-
43 tary of state shall transmit an original or a copy of the notice of
44 claim to the public corporation named in the notice;
45 (d)] nothing in this section shall be deemed to alter, waive or other-
46 wise abrogate any defense available to a public corporation as to the
47 nature, sufficiency, or appropriateness of the notice of claim itself,
48 or to any challenges to the timeliness of the service of a notice of
49 claim. Timely service upon the secretary of state shall be deemed time-
50 ly service upon the public corporation for purposes of instituting an
51 action or proceeding or other requirement imposed by law.
52 4. The secretary of state may impose a fee upon any person who serves
53 a notice of claim with the department. Such fee shall not exceed two
54 hundred fifty dollars for each such notice filed. One-half of the fee
55 imposed shall be retained by the secretary of state as payment for its
56 services provided in accordance with this section. The remaining one-
S. 2155 4
1 half of such fee shall be forwarded to the public corporation named in
2 the notice of claim provided, however, if more than one such public
3 corporation is named, each named public corporation shall be entitled to
4 an equal percentage of the one-half amount.
5 5. The secretary of state shall within sixty days after the effective
6 date of this section post on the departmental website a list of any
7 public corporation, including any public authority, public benefit
8 corporation or any other entity entitled to receive a notice of claim as
9 a condition precedent to commencement of an action or proceeding, and
10 that has filed, pursuant to this section, a certificate with the secre-
11 tary of state designating the secretary as the agent for service of a
12 notice of claim. The list should identify the entity, the POST OFFICE
13 address AND ELECTRONIC MAIL ADDRESS, IF AVAILABLE, of the public corpo-
14 ration to which the notice of claim shall be forwarded by the secretary
15 of state, and any statutory provisions uniquely pertaining to such
16 public corporation and the commencement of an action or proceeding
17 against it.
18 6. THE SECRETARY OF STATE IS AUTHORIZED TO PROMULGATE ANY RULES OR
19 REGULATIONS NECESSARY TO IMPLEMENT THE PROVISIONS OF THIS SECTION.
20 S 4. Subdivision 2 of section 50-h of the general municipal law, as
21 amended by chapter 254 of the laws of 1990, is amended to read as
22 follows:
23 2. The demand for examination as provided in subdivision one of this
24 section shall be made by the chief executive officer or, where there is
25 no such officer, by the chairman of the governing body of the city,
26 county, town, village, fire district or school district or by such offi-
27 cer, agent or employee as may be designated by him for that purpose.
28 The demand shall be in writing and shall be served personally or by
29 registered or certified mail upon the claimant unless the claimant is
30 represented by an attorney, when it shall be served personally or by
31 mail upon his attorney. The demand shall give reasonable notice of the
32 examination. It shall state the person before whom the examination is to
33 be held, the time, place and subject matter thereof and, if a physical
34 examination is to be required, it shall so state. If the place of exam-
35 ination is located outside the municipality against which the claim is
36 made, the claimant may demand, within ten days of such service, that the
37 examination be held at a location within such municipality. Such
38 location shall be determined by the municipality. If a physical exam-
39 ination is to be required and there is no appropriate place for such an
40 examination within the municipality, such examination shall be given at
41 a location as close to such municipality as practicable. No demand for
42 examination shall be effective against the claimant for any purpose
43 unless it shall be served as provided in this subdivision within ninety
44 days from the date of filing of the notice of claim, OR IF SERVICE OF
45 THE NOTICE OF CLAIM IS MADE BY SERVICE UPON THE SECRETARY OF STATE
46 PURSUANT TO SECTION FIFTY-THREE OF THIS ARTICLE, WITHIN ONE HUNDRED DAYS
47 FROM THE DATE OF SUCH SERVICE.
48 S 5. Subdivision 1 of section 50-i of the general municipal law, as
49 amended by chapter 738 of the laws of 1981, is amended to read as
50 follows:
51 1. No action or special proceeding shall be prosecuted or maintained
52 against a city, county, town, village, fire district or school district
53 for personal injury, wrongful death or damage to real or personal prop-
54 erty alleged to have been sustained by reason of the negligence or
55 wrongful act of such city, county, town, village, fire district or
56 school district or of any officer, agent or employee thereof, including
S. 2155 5
1 volunteer firemen of any such city, county, town, village, fire district
2 or school district or any volunteer fireman whose services have been
3 accepted pursuant to the provisions of section two hundred nine-i of
4 this chapter, unless, (a) a notice of claim shall have been made and
5 served upon the city, county, town, village, fire district or school
6 district in compliance with section fifty-e of this [chapter] ARTICLE,
7 (b) it shall appear by and as an allegation in the complaint or moving
8 papers that at least thirty days have elapsed since the service of such
9 notice, OR IF SERVICE OF THE NOTICE OF CLAIM IS MADE BY SERVICE UPON THE
10 SECRETARY OF STATE PURSUANT TO SECTION FIFTY-THREE OF THIS ARTICLE, THAT
11 AT LEAST FORTY DAYS HAVE ELAPSED SINCE THE SERVICE OF SUCH NOTICE, and
12 that adjustment or payment thereof has been neglected or refused, and
13 (c) the action or special proceeding shall be commenced within one year
14 and ninety days after the happening of the event upon which the claim is
15 based; except that wrongful death actions shall be commenced within two
16 years after the happening of the death.
17 S 6. Subdivision 1 of section 20 of section 1 of chapter 1016 of the
18 laws of 1969 constituting the New York city health and hospitals corpo-
19 ration act, as amended by chapter 877 of the laws of 1973, is amended to
20 read as follows:
21 1. In every action against the corporation for damages for injuries to
22 real or personal property, or for the destruction thereof, or for
23 personal injuries or death, the complaint shall contain an allegation
24 that at least thirty days have elapsed since the demand, claim or claims
25 upon which such action is founded were presented to a director or offi-
26 cer of the corporation and that the corporation has neglected or refused
27 to make an adjustment or payment thereof for thirty days after such
28 presentment, OR IF THE DEMAND, CLAIM OR CLAIMS UPON WHICH SUCH ACTION IS
29 FOUNDED WAS PRESENTED TO A DIRECTOR OR OFFICER OF THE CORPORATION BY
30 SERVICE UPON THE SECRETARY OF STATE PURSUANT TO SECTION FIFTY-THREE OF
31 THE GENERAL MUNICIPAL LAW, THAT AT LEAST FORTY DAYS HAVE ELAPSED SINCE
32 SUCH SERVICE WAS MADE, AND THAT THE CORPORATION HAS NEGLECTED OR REFUSED
33 TO MAKE AN ADJUSTMENT OR PAYMENT THEREOF FOR FORTY DAYS AFTER SUCH
34 PRESENTMENT.
35 S 7. Section 79 of chapter 500 of the laws of 2012 amending the civil
36 practice law and rules and other laws, relating to establishing a
37 uniform process and requirement for the filing of notices of claim prior
38 to the commencement of a cause of action against any state or municipal
39 entity, public authority or public benefit corporation, is amended to
40 read as follows:
41 S 79. This act shall take effect on the one hundred eightieth day
42 after it shall have become a law and shall apply to all actions and
43 proceedings accruing on or after such date; provided, however, THAT
44 SECTION FOUR OF THIS ACT SHALL TAKE EFFECT TWO HUNDRED TEN DAYS AFTER
45 THIS ACT SHALL HAVE BECOME A LAW; AND PROVIDED, FURTHER, that section
46 seventy-eight of this act shall take effect upon the enactment into law
47 by the state of New Jersey of legislation having an identical effect as
48 section seventy-eight of this act, but if the state of New Jersey shall
49 have enacted such legislation into law prior to the first day of January
50 next succeeding the date upon which this act shall have become a law,
51 section seventy-eight of this act shall take effect on the one hundred
52 eightieth day from the date upon which it shall have become a law;
53 provided further, [however,] that the state of New Jersey shall notify
54 the legislative bill drafting commission upon the occurrence of the
55 enactment of the provisions provided for in this act in order that the
56 commission may maintain an accurate and timely effective data base of
S. 2155 6
1 the official text of the laws of the state of New York in furtherance of
2 effecting the provisions of section 44 of the legislative law and
3 section 70-b of the public officers law; AND PROVIDED FURTHER THAT
4 SECTION NINE OF THIS ACT SHALL TAKE EFFECT UPON THE CONCURRENCE BY
5 MEMBERS OF THE DELAWARE RIVER BASIN WATER COMMISSION.
6 S 8. This act shall take effect on the same date and in the same
7 manner as chapter 500 of the laws of 2012 takes effect.
