The recent decision by the New York Supreme Court Appellate Division in J.H. v. New York City Health and Hospitals Corporation, 169 A.D.3d 880 (NY App. Div. 2019) answers the question of whether a plaintiff can serve late notice of a claim upon a hospital operator. At issue, specifically in J.H., is whether a plaintiff, when there are actual knowledge and an absence of prejudice on part of the defendant, can be granted leave to serve a late notice of a claim despite lacking a reasonable excuse.
New York Law
Under New York’s General Municipal Law § 50–e[a], service of a notice of claim is a condition precedent to bringing suit against a public corporation and requires that the notice is served within 90 days after the claim accrues. Unless leave of court is made, late service of the original notice of claim is a nullity. Additionally, after the statute of limitations has run courts lack the authority to deem that late notice of claim timely served nunc pro tunc. The statute of limitations under General Municipal Law § 50–e[a] provides that the limitation period for commencing a tort action against a municipal corporation is one year and 90 days, however, in cases such as J.H., the statute of limitations does not expire after one year and 90 days because a plaintiffs infancy tolls the statute of limitations for 10 years.