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A01051 Summary:

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                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          1051
 
                               2013-2014 Regular Sessions
 
                   IN ASSEMBLY
 
                                       (Prefiled)
 
                                     January 9, 2013
                                       ___________
 
        Introduced  by  M.  of  A.  WEINSTEIN  --  read once and referred 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    §  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-
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD05824-01-3
        A. 1051                             2
 
     1  sion one of section fifty-i of the general municipal law. Except  in  an
     2  action  for wrongful death against such an entity, an action for damages
     3  or for injuries to real or personal property,  or  for  the  destruction
     4  thereof, or for personal injuries, alleged to have been sustained, shall

     5  not  be  commenced more than one year and ninety days after the cause of
     6  action therefor shall have accrued or within the time  period  otherwise
     7  prescribed  by any special provision of law, whichever is longer.  Noth-
     8  ing herein is intended to amend the court of claims act or any provision
     9  thereof.
    10    § 2. Paragraph (f) of subdivision 3 of section  50-e  of  the  general
    11  municipal  law,  as added by chapter 500 of the laws of 2012, is amended
    12  to read as follows:
    13    (f) Service of a notice of claim on the secretary of state as agent of
    14  any public corporation, as defined in subdivision one of section  sixty-
    15  six  of  the general construction law, whatsoever created or existing by
    16  virtue of the laws of the state of New  York  upon  whom  service  of  a
    17  notice  of claim is required as a condition precedent to being sued, may

    18  be made by personally delivering to and leaving with  the  secretary  of
    19  state  or  a  deputy,  or with any person authorized by the secretary of
    20  state to receive such service, at [any] the office of the department  of
    21  state  in  the  city of Albany [or at one of his or her regularly estab-
    22  lished offices], duplicate copies of such notice of  claim together with
    23  the statutory fee, which fee shall be a taxable disbursement but only in
    24  the amount equal to the portion of  the  fee  collected  by  the  public
    25  corporation  in  accordance  with  subdivision  four  of  this  section.
    26  Service on such public corporation shall be complete when the  secretary
    27  of  state  is so served.  [The secretary of state shall promptly] Within

    28  ten days after receiving a notice of claim, the secretary of state shall
    29  either: (1) send one of such copies by certified  mail,  return  receipt
    30  requested,  to such public corporation, at the post office address[,] on
    31  file in the department of state, specified for the purpose; or (2) elec-
    32  tronically transmit a copy to such public corporation at the  electronic
    33  address on file with the department of state specified for that purpose;
    34  or  (3)  transmit  a  copy  to such public corporation by any other such
    35  means or procedure established by the secretary of state, provided  that
    36  such other means or procedure of transmittal must be verifiable.
    37    §  3. Section 53 of the general municipal law, as added by chapter 500
    38  of the laws of 2012, is amended to read as follows:

    39    § 53. Alternative service of notice of claim  upon  the  secretary  of
    40  state. 1. In lieu of serving a notice of claim upon a public corporation
    41  as  provided  for  in section fifty-e of this article, a notice of claim
    42  setting forth the same information as required by such  section  may  be
    43  served  upon the secretary of state in the same manner as if served with
    44  the public corporation. All  the  requirements  relating  to  the  form,
    45  content,  time  limitations, exceptions, extensions and any other proce-
    46  dural requirements imposed in such section with respect to a  notice  of
    47  claim  served upon a public corporation shall correspondingly apply to a
    48  notice of claim served upon the secretary of state as permitted by  this
    49  section.  For  purposes of this article, the secretary of state shall be
    50  deemed to be the agent for all public corporations upon whom a notice of

    51  claim may be served prior to commencement of any  action  or  proceeding
    52  subject to the requirements of this article.
    53    2.    [The  secretary  of  state  shall designate an office within the
    54  department of state whereat persons are entitled by law to timely  serve
    55  a  notice of claim upon the secretary of state as the agent for a public
    56  corporation as a condition precedent to commencement  of  an  action  or
        A. 1051                             3

     1  proceeding.] All public corporations entitled to have served upon them a
     2  notice of claim as a condition precedent to commencement of an action or
     3  proceeding  shall,  no  later than thirty days after the date upon which
     4  this section shall take effect, file a certificate with the secretary of

     5  state  designating the secretary as the agent for service of a notice of
     6  claim and shall in such statement provide the secretary with  the  name,
     7  post  office  address  and  electronic mail address, if available, of an
     8  officer, person, or designee, nominee or  other  agent-in-fact  for  the
     9  transmittal  of notices of claim served upon the secretary as the public
    10  corporation's agent. Any designated [post-office] post office address or
    11  electronic mail address to which the secretary  of  state  shall  [mail]
    12  transmit  a  copy of the notice of claim served upon him or her as agent
    13  shall continue to be the address to which such notices shall be [mailed]
    14  transmitted until the public corporation sends a notice to the secretary

    15  informing him or her of a new post office  address  or  electronic  mail
    16  address to which such notices shall be [mailed] transmitted. The initial
    17  filing  with  the  secretary  of state shall also contain the applicable
    18  time limit for filing a notice of claim upon that public corporation, or
    19  if later changed by statute, a new filing shall be  made  detailing  the
    20  [altered]  new  time  limit.  Any public corporation [who] that does not
    21  have a current and timely statutory designation filed with the secretary
    22  of state shall not be entitled to the portion of the  fee  to  which  it
    23  would  otherwise  be  entitled  pursuant  to  subdivision  four  of this
    24  section. Failure of the public corporation to so file with the secretary

    25  of state will not invalidate any service of a notice of claim  upon  the
    26  public corporation which has been received by the secretary of state.
    27    3. The secretary of state is hereby empowered to accept properly tran-
    28  smitted  notices  of  claims on behalf of a public corporation, with the
    29  same effect as if served directly upon a public corporation. The  secre-
    30  tary  of  state  shall  accept such service upon the following terms and
    31  conditions:
    32    (a) the secretary of state shall set and notify the public, on his  or
    33  her  website,  [as to reasonable] of times, places and manner of service
    34  upon him or her of notices  of  claims  necessary  to  comply  with  the
    35  provisions of this section;
    36    (b)  upon  receipt  of a notice of claim, the secretary of state shall
    37  issue a receipt or other document acknowledging his or  her  receipt  of

    38  such notice, and such receipt shall contain the date and time of receipt
    39  of  the  notice,  an identifying number or name particular to the notice
    40  received, and the logo or seal of the department of state embossed  upon
    41  it.  Such  receipt  shall  be  prima  facie evidence of service upon the
    42  secretary of state for all purposes;
    43    (c) [within ten days after receiving the notice of claim,  the  secre-
    44  tary  of  state  shall  transmit  an original or a copy of the notice of
    45  claim to the public corporation named in the notice;
    46    (d)] nothing in this section shall be deemed to alter, waive or other-
    47  wise abrogate any defense available to a public corporation  as  to  the
    48  nature,  sufficiency,  or appropriateness of the notice of claim itself,
    49  or to any challenges to the timeliness of the service  of  a  notice  of

    50  claim.  Timely service upon the secretary of state shall be deemed time-
    51  ly  service  upon  the public corporation for purposes of instituting an
    52  action or proceeding or other requirement imposed by law.
    53    4. The secretary of state may impose a fee upon any person who  serves
    54  a  notice  of  claim  with the department. Such fee shall not exceed two
    55  hundred fifty dollars for each such notice filed. One-half  of  the  fee
    56  imposed  shall  be retained by the secretary of state as payment for its
        A. 1051                             4
 
     1  services provided in accordance with this section.  The  remaining  one-
     2  half  of  such fee shall be forwarded to the public corporation named in
     3  the notice of claim provided, however, if  more  than  one  such  public
     4  corporation is named, each named public corporation shall be entitled to

     5  an equal percentage of the one-half amount.
     6    5.  The secretary of state shall within sixty days after the effective
     7  date of this section post on the departmental  website  a  list  of  any
     8  public  corporation,  including  any  public  authority,  public benefit
     9  corporation or any other entity entitled to receive a notice of claim as
    10  a condition precedent to commencement of an action  or  proceeding,  and
    11  that  has filed, pursuant to this section, a certificate with the secre-
    12  tary of state designating the secretary as the agent for  service  of  a
    13  notice  of  claim.  The list should identify the entity, the post office
    14  address and electronic mail address, if available, of the public  corpo-
    15  ration  to which the notice of claim shall be forwarded by the secretary
    16  of state, and any  statutory  provisions  uniquely  pertaining  to  such

    17  public  corporation  and  the  commencement  of  an action or proceeding
    18  against it.
    19    6. The secretary of state is authorized to  promulgate  any  rules  or
    20  regulations necessary to implement the provisions of this section.
    21    §  4.  Subdivision  2 of section 50-h of the general municipal law, as
    22  amended by chapter 254 of the laws  of  1990,  is  amended  to  read  as
    23  follows:
    24    2.  The  demand for examination as provided in subdivision one of this
    25  section shall be made by the chief executive officer or, where there  is
    26  no  such  officer,  by  the  chairman of the governing body of the city,
    27  county, town, village, fire district or school district or by such offi-
    28  cer, agent or employee as may be designated by  him  for  that  purpose.
    29  The  demand  shall  be  in  writing and shall be served personally or by

    30  registered or certified mail upon the claimant unless  the  claimant  is
    31  represented  by  an  attorney,  when it shall be served personally or by
    32  mail upon his attorney. The demand shall give reasonable notice  of  the
    33  examination. It shall state the person before whom the examination is to
    34  be  held,  the time, place and subject matter thereof and, if a physical
    35  examination is to be required, it shall so state. If the place of  exam-
    36  ination  is  located outside the municipality against which the claim is
    37  made, the claimant may demand, within ten days of such service, that the
    38  examination be  held  at  a  location  within  such  municipality.  Such
    39  location  shall  be determined by the municipality.  If a physical exam-
    40  ination is to be required and there is no appropriate place for such  an
    41  examination  within the municipality, such examination shall be given at

    42  a location as close to such municipality as practicable. No  demand  for
    43  examination  shall  be  effective  against  the claimant for any purpose
    44  unless it shall be served as provided in this subdivision within  ninety
    45  days  from  the  date of filing of the notice of claim, or if service of
    46  the notice of claim is made by  service  upon  the  secretary  of  state
    47  pursuant to section fifty-three of this article, within one hundred days
    48  from the date of such service.
    49    §  5.  Subdivision  1 of section 50-i of the general municipal law, as
    50  amended by chapter 738 of the laws  of  1981,  is  amended  to  read  as
    51  follows:
    52    1.  No  action or special proceeding shall be prosecuted or maintained
    53  against a city, county, town, village, fire district or school  district

    54  for  personal injury, wrongful death or damage to real or personal prop-
    55  erty alleged to have been sustained  by  reason  of  the  negligence  or
    56  wrongful  act  of  such  city,  county,  town, village, fire district or
        A. 1051                             5
 
     1  school district or of any officer, agent or employee thereof,  including
     2  volunteer firemen of any such city, county, town, village, fire district
     3  or  school  district  or  any volunteer fireman whose services have been
     4  accepted  pursuant  to  the  provisions of section two hundred nine-i of
     5  this chapter, unless, (a) a notice of claim shall  have  been  made  and
     6  served  upon  the  city,  county, town, village, fire district or school
     7  district in compliance with section fifty-e of this  [chapter]  article,

     8  (b)  it  shall appear by and as an allegation in the complaint or moving
     9  papers that at least thirty days have elapsed since the service of  such
    10  notice, or if service of the notice of claim is made by service upon the
    11  secretary of state pursuant to section fifty-three of this article, that
    12  at  least  forty days have elapsed since the service of such notice, and
    13  that adjustment or payment thereof has been neglected  or  refused,  and
    14  (c)  the action or special proceeding shall be commenced within one year
    15  and ninety days after the happening of the event upon which the claim is
    16  based; except that wrongful death actions shall be commenced within  two
    17  years after the happening of the death.
    18    §  6.  Subdivision 1 of section 20 of section 1 of chapter 1016 of the
    19  laws of 1969 constituting the New York city health and hospitals  corpo-

    20  ration act, as amended by chapter 877 of the laws of 1973, is amended to
    21  read as follows:
    22    1. In every action against the corporation for damages for injuries to
    23  real  or  personal  property,  or  for  the  destruction thereof, or for
    24  personal injuries or death, the complaint shall  contain  an  allegation
    25  that at least thirty days have elapsed since the demand, claim or claims
    26  upon  which such action is founded were presented to a director or offi-
    27  cer of the corporation and that the corporation has neglected or refused
    28  to make an adjustment or payment thereof  for  thirty  days  after  such
    29  presentment, or if the demand, claim or claims upon which such action is
    30  founded  was  presented  to  a director or officer of the corporation by
    31  service upon the secretary of state pursuant to section  fifty-three  of

    32  the  general  municipal law, that at least forty days have elapsed since
    33  such service was made, and that the corporation has neglected or refused
    34  to make an adjustment or payment  thereof  for  forty  days  after  such
    35  presentment.
    36    §  7. Section 79 of chapter 500 of the laws of 2012 amending the civil
    37  practice law and rules  and  other  laws,  relating  to  establishing  a
    38  uniform process and requirement for the filing of notices of claim prior
    39  to  the commencement of a cause of action against any state or municipal
    40  entity, public authority or public benefit corporation,  is  amended  to
    41  read as follows:
    42    §  79.  This  act  shall  take effect on the one hundred eightieth day
    43  after it shall have become a law and shall  apply  to  all  actions  and

    44  proceedings  accruing  on  or  after  such date; provided, however, that
    45  section four of this act shall take effect two hundred  ten  days  after
    46  this  act  shall  have become a law; and provided, further, that section
    47  seventy-eight of this act shall take effect upon the enactment into  law
    48  by  the state of New Jersey of legislation having an identical effect as
    49  section seventy-eight of this act, but if the state of New Jersey  shall
    50  have enacted such legislation into law prior to the first day of January
    51  next  succeeding  the  date upon which this act shall have become a law,
    52  section seventy-eight of this act shall take effect on the  one  hundred
    53  eightieth  day  from  the  date  upon  which it shall have become a law;
    54  provided further, [however,] that the state of New Jersey  shall  notify

    55  the  legislative  bill  drafting  commission  upon the occurrence of the
    56  enactment of the provisions provided for in this act in order  that  the
        A. 1051                             6
 
     1  commission  may  maintain  an accurate and timely effective data base of
     2  the official text of the laws of the state of New York in furtherance of
     3  effecting the provisions of  section  44  of  the  legislative  law  and
     4  section  70-b  of  the  public  officers  law; and provided further that
     5  section nine of this act shall  take  effect  upon  the  concurrence  by
     6  members of the Delaware River Basin Water Commission.
     7    §  8.  This  act  shall  take  effect on the same date and in the same
     8  manner as chapter 500 of the laws of 2012 takes effect.