BILL NUMBER: S9857

SPONSOR: HOYLMAN-SIGAL
 
TITLE OF BILL:

An act to amend the court of claims act, in relation to allowing for
dismissal of a claim based on claimant's failure to comply with pleading
requirements

AN ACT to amend the court of claims act, in relation to allowing for
dismissal of a claim based on claimant's failure to comply with pleading
requirements

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 Court of Claims Act § 11 by adding a new subdi-
vision (d) to permit an amendment to the notice of intention or claim to
be freely granted at any time during the pendency of an action absent a
showing of prejudice by the State.

This measure would supply a procedure for a claimant to correct a good
faith mistake, omission, irregularity or defect in the notice of inten-
              

tion or claim even when such error resulted in no prejudice to the
State.

 
BACKGROUND:

The Court of Claims Act (CCA) requires that a claimant either serve and
file a claim or serve a notice of intention within a specified time
after accrual of the claim in order to permit the State to timely inves-
tigate the allegations. (CCA § 10-1, 2, 3, 3-a, 3-b, 4 and 5.)

The CCA has provisions for a claimant who fails to timely serve or file
a notice of intention or claim, (see § 10-6 and 8(a)), but it has no
provision allowing a claimant to amend a timely served notice of inten-
tion or timely served and filed claim to correct a mistake, omission,
irregularity, or other defect.

In contrast to the CCA, the General Municipal Law (GML) 50-e specif-
ically provides a remedy to correct an error in a timely filed notice of
claim made in good faith which does not prejudice the municipality.

This proposed measure seeks to incorporate the language of GML 50-e into
the CCA.

 
JUSTIFICATION:

A new provision specifically addressed to circumstances where a notice
of intention or claim is timely served or filed but contains an error
made in good faith which results in no prejudice to the State is neces-
sary to avoid the dismissal of a potentially meritorious case for purely
procedural reasons. As noted by Professor Vincent Alexander (a member of
the committee) in the Practice Commentaries to CPLR 2001, a statute
permitting the correction of non-prejudicial mistakes is essential in an
enlightened system of civil procedure that eschews the elevation of form
over substance.

The need for a provision to allow for amending a timely served notice or
served and filed claim is demonstrated by Constable v. State of New
York, 172 A.D. 3d 681 (Second Dept. 2019), where the claim was dismissed
because the notice of intention and claim failed to adequately describe
the location of the alleged accident. As noted in the decision, the
State's motion seeking dismissal was filed six months after the last
deposition was conducted.

In another case, Hyatt v. State of New York, 2018 NY Slip Op 51983 (U),
the claimant's action was dismissed because he had incorrectly described
the location of the automobile accident in his otherwise timely notice
of intention and claim. The claimant had relied on incorrect information
provided in the report issued by the New York State Police which had
investigated the accident. The claimant's subsequent attorneys discov-
ered the mistake, and the claimant sought permission to serve an amended
notice of intention to file a claim and moved to serve and file a late
claim. The Court of Claims noted that there was no provision in the CCA
for service of an amended notice of intention to file a claim. Instead,
the Court weighed the factors set forth in CCA § 10(6) and denied the
application to file a late claim. The decision is presently on appeal.

The more stringent requirements for filing a late claim under CCA §
10(6) are not available even to a claimant who has timely served or
filed initially unless an application is made within the prescribed
statute of limitations. This measure would ensure that a claimant who
has timely served or filed is not precluded from correcting the good
faith error or omission solely because the statute of limitations has
run. This measure is intended to provide a remedy in the interest of
justice to a claimant who timely serves a notice of intention or serves
and files a claim which contains an error that caused no prejudice to
the State.

 
CHANGE IN EXISTING LAW:

This measure is intended to provide a remedy in the interest of justice
to a claimant who timely serves a notice of intention or serves and
files a claim which contains an error that caused no prejudice to the
State.  This measure would take effect immediately.

 
LEGISLATIVE HISTORY 2021-22:

A7797 (MA Rajkumar)(PASSED) OCA-31

 
LEGISLATIVE HISTORY 2019-20:

OCA-77