Court of Appeals Announces Burden Shifting Standard to Show No Substantial Prejudice to Public Corporation When Asking to Serve a Late Notice of Claim

In Matter of Newcomb v Middle Country Cent. Sch. Dist. (No. 198) previewed here, the Court of Appeals reversed an order of the Appellate Division, Second Department that had denied the plaintiff’s request to serve a late notice of claim under General Municipal Law § 50-e(5) on the school district, alleging that a sign advertising a musical at the school had negligently obstructed views of pedestrians and motorists at the intersection where the 16-year-old plaintiff was struck while crossing the street.  The Appellate Division had held that the plaintiff had the burden to show that the school district would not be prejudiced by the late notice of claim, and that he had failed to overcome a presumption that the school district would be prejudiced by the delay.

The Court of Appeals held that the trial court and Appellate Division applied the wrong standard to the plaintiff’s request.  Particularly, the Court held, when evaluating the fourth element of a request to serve a late notice of claim–whether the public corporation will be substantially prejudiced by the late notice–the trial court and Appellate Division wrongly presumed that the school district would be prejudiced by the graduation of students and personnel changes, which the courts inferred presumably would hinder the school district’s investigation of the claim.  No record evidence existed to support the courts’ presumptions, the Court held, and thus it was an abuse of discretion to deny the plaintiff’s request to serve the late notice of claim on that ground.

Importantly, in Newcomb, the Court clarified that although the initial burden rests with the party seeking to serve the late notice of claim to show that the public corporation will not be substantially prejudiced, “[s]uch a showing need not be extensive, but the petitioner must present some evidence or plausible argument that supports a finding of no substantial prejudice” (Opn, at 12).  Once the party makes that showing, the burden shifts to the public corporation to rebut the party’s showing with “particularized evidence” to demonstrate how the corporation will be substantially prejudiced in defending the case on the merits (Opn, at 13-14).

The Court of Appeals’ decision can be found here.

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