Bill Text: NY S02394 | 2009-2010 | General Assembly | Introduced
Bill Title: 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.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Introduced - Dead) 2009-05-11 - RECOMMIT, ENACTING CLAUSE STRICKEN [S02394 Detail]
Download: New_York-2009-S02394-Introduced.html
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: 1 Section 1. Paragraph (a) of subdivision 3 of section 50-e of the 2 general municipal law, as amended by chapter 745 of the laws of 1976, is 3 amended and a new paragraph (e) is added to read as follows: 4 (a) The notice shall be served on the public corporation against which 5 the claim is made by delivering a copy thereof personally, or by regis- 6 tered or certified mail, to the person designated by law as one to whom 7 a summons in an action in the supreme court issued against such corpo- 8 ration may be delivered, or to an attorney regularly engaged in repres- 9 enting such public corporation OR, IN A CITY WITH A POPULATION OF OVER 10 ONE MILLION, BY ELECTRONIC MEANS IN A FORM AND MANNER PRESCRIBED BY SUCH 11 CITY. 12 (E) IF THE NOTICE IS SERVED BY ELECTRONIC MEANS, AS DEFINED IN PARA- 13 GRAPH TWO OF SUBDIVISION (F) OF RULE TWENTY-ONE HUNDRED THREE OF THE 14 CIVIL PRACTICE LAW AND RULES, IT SHALL CONTAIN THE INFORMATION REQUIRED 15 UNDER THE PROVISIONS OF SUBDIVISION TWO OF THIS SECTION. IN ADDITION, 16 SUCH NOTICE SHALL CONTAIN THE FOLLOWING DECLARATION: "I CERTIFY THAT ALL 17 INFORMATION CONTAINED IN THIS NOTICE IS TRUE AND CORRECT TO THE BEST OF 18 MY KNOWLEDGE AND BELIEF. I UNDERSTAND THAT THE WILLFUL MAKING OF ANY 19 FALSE STATEMENT OF MATERIAL FACT HEREIN WILL SUBJECT ME TO CRIMINAL 20 PENALTIES AND CIVIL LIABILITIES." SERVICE OF THE NOTICE SHALL BE 21 COMPLETE UPON SUCCESSFUL TRANSMISSION OF THE NOTICE AS INDICATED BY AN 22 ELECTRONIC RECEIPT PROVIDED BY SUCH CITY, WHICH SHALL TRANSMIT AN ELEC- 23 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 1 S 2. Subdivision 5 of section 50-e of the general municipal law, as 2 amended by chapter 745 of the laws of 1976, is amended to read as 3 follows: 4 5. Application for leave to serve a late notice. 5 Upon application, the court, in its discretion, may extend the time to 6 serve a notice of claim specified in paragraph (a) of subdivision one OF 7 THIS SECTION. The extension shall not exceed the time limited for the 8 commencement of an action by the claimant against the public corpo- 9 ration. In determining whether to grant the extension, the court shall 10 consider, in particular, whether the public corporation or its attorney 11 or its insurance carrier acquired actual knowledge of the essential 12 facts constituting the claim within the time specified in subdivision 13 one OF THIS SECTION or within a reasonable time thereafter. The court 14 shall also consider all other relevant facts and circumstances, includ- 15 ing: whether the claimant was an infant, or mentally or physically inca- 16 pacitated, or died before the time limited for service of the notice of 17 claim; whether the claimant failed to serve a timely notice of claim by 18 reason of his justifiable reliance upon settlement representations made 19 by an authorized representative of the public corporation or its insur- 20 ance carrier; whether the claimant in serving a notice of claim made an 21 excusable error concerning the identity of the public corporation 22 against which the claim should be asserted; IF SERVICE OF THE NOTICE OF 23 CLAIM IS ATTEMPTED BY ELECTRONIC MEANS PURSUANT TO PARAGRAPH (E) OF 24 SUBDIVISION THREE OF THIS SECTION, WHETHER THE DELAY IN SERVING THE 25 NOTICE OF CLAIM WAS BASED UPON THE FAILURE OF THE COMPUTER SYSTEM OF THE 26 CITY OR THE CLAIMANT OR THE ATTORNEY REPRESENTING THE CLAIMANT; THAT 27 SUCH CLAIMANT OR ATTORNEY, AS THE CASE MAY BE, SUBMITTED EVIDENCE OR 28 PROOF AS IS REASONABLE SHOWING THAT (I) THE SUBMISSION OF THE CLAIM WAS 29 ATTEMPTED TO BE ELECTRONICALLY MADE IN A TIMELY MANNER AND WOULD HAVE 30 BEEN COMPLETED BUT FOR THE FAILURE OF THE COMPUTER SYSTEM UTILIZED BY 31 THE SENDER OR RECIPIENT, AND (II) THAT UPON BECOMING AWARE OF BOTH THE 32 FAILURE OF SUCH SYSTEM AND THE FAILURE OF THE CITY TO RECEIVE SUCH 33 SUBMISSION, THE CLAIMANT OR ATTORNEY HAD INSUFFICIENT TIME TO MAKE SUCH 34 CLAIM WITHIN THE PERMITTED TIME PERIOD IN A MANNER AS OTHERWISE 35 PRESCRIBED BY LAW; and whether the delay in serving the notice of claim 36 substantially prejudiced the public corporation in maintaining its 37 defense on the merits. 38 An application for leave to serve a late notice shall not be denied on 39 the ground that it was made after commencement of an action against the 40 public corporation. 41 S 3. This act shall take effect on the one hundred eightieth day after 42 it shall have become a law.