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S02155 Summary:

BILL NOS02155
 
SAME ASSAME AS A01051
 
SPONSORMARTINS
 
COSPNSR
 
MLTSPNSR
 
Amd S217-a, CPLR; amd SS50-e, 53, 50-h & 50-i, Gen Muni L; amd S20, NYC Health & Hosp Corp Act; amd S79, Chap 500 of 2012
 
Relates 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; amends chapter 500 of the laws of 2012, amending the civil practice law and rules, the general municipal law, the environmental conservation law, the public authorities law, the education law, the mental hygiene law, the private housing finance law, the facilities development corporation act, the administrative code of the city of New York, and chapter 154 of the laws of 1921 relating to the port authority of New York and New Jersey, 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.
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S02155 Actions:

BILL NOS02155
 
01/14/2013REFERRED TO JUDICIARY
04/10/2013COMMITTEE DISCHARGED AND COMMITTED TO LOCAL GOVERNMENT
04/16/20131ST REPORT CAL.325
04/17/20132ND REPORT CAL.
04/22/2013ADVANCED TO THIRD READING
04/24/2013SUBSTITUTED BY A1051
 A01051 AMEND= Weinstein
 01/09/2013referred to judiciary
 01/14/2013reported referred to rules
 01/14/2013reported
 01/14/2013rules report cal.1
 01/14/2013ordered to third reading rules cal.1
 01/14/2013passed assembly
 01/14/2013delivered to senate
 01/14/2013REFERRED TO JUDICIARY
 04/24/2013SUBSTITUTED FOR S2155
 04/24/20133RD READING CAL.325
 04/24/2013PASSED SENATE
 04/24/2013RETURNED TO ASSEMBLY
 04/26/2013delivered to governor
 05/02/2013signed chap.24
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S02155 Floor Votes:

There are no votes for this bill in this legislative session.
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S02155 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          2155
 
                               2013-2014 Regular Sessions
 
                    IN SENATE
 
                                    January 14, 2013
                                       ___________
 
        Introduced  by  Sen. MARTINS -- read twice and ordered printed, and when
          printed to be committed 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-
    17  sion one of section fifty-i of the general municipal law. Except  in  an
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD05824-01-3

        S. 2155                             2
 
     1  action  for wrongful death against such an entity, an action for damages
     2  or for injuries to real or personal property,  or  for  the  destruction
     3  thereof, or for personal injuries, alleged to have been sustained, shall
     4  not  be  commenced more than one year and ninety days after the cause of

     5  action therefor shall have accrued or within the time  period  otherwise
     6  prescribed  by any special provision of law, whichever is longer.  Noth-
     7  ing herein is intended to amend the court of claims act or any provision
     8  thereof.
     9    § 2. Paragraph (f) of subdivision 3 of section  50-e  of  the  general
    10  municipal  law,  as added by chapter 500 of the laws of 2012, is amended
    11  to read as follows:
    12    (f) Service of a notice of claim on the secretary of state as agent of
    13  any public corporation, as defined in subdivision one of section  sixty-
    14  six  of  the general construction law, whatsoever created or existing by
    15  virtue of the laws of the state of New  York  upon  whom  service  of  a
    16  notice  of claim is required as a condition precedent to being sued, may
    17  be made by personally delivering to and leaving with  the  secretary  of

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

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

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

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

        S. 2155                             3
 
     1  notice of claim as a condition precedent to commencement of an action or
     2  proceeding  shall,  no  later than thirty days after the date upon which
     3  this section shall take effect, file a certificate with the secretary of
     4  state  designating the secretary as the agent for service of a notice of

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

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

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

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

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

        S. 2155                             4
 
     1  half  of  such fee shall be forwarded to the public corporation named in
     2  the notice of claim provided, however, if  more  than  one  such  public
     3  corporation is named, each named public corporation shall be entitled to

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

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

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

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

    53  for  personal injury, wrongful death or damage to real or personal prop-
    54  erty alleged to have been sustained  by  reason  of  the  negligence  or
    55  wrongful  act  of  such  city,  county,  town, village, fire district or
    56  school district or of any officer, agent or employee thereof,  including

        S. 2155                             5
 
     1  volunteer firemen of any such city, county, town, village, fire district
     2  or  school  district  or  any volunteer fireman whose services have been
     3  accepted pursuant to the provisions of section  two  hundred  nine-i  of
     4  this  chapter,  unless,  (a)  a notice of claim shall have been made and
     5  served upon the city, county, town, village,  fire  district  or  school
     6  district  in  compliance with section fifty-e of this [chapter] article,

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

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

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

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

    54  the legislative bill drafting commission  upon  the  occurrence  of  the
    55  enactment  of  the provisions provided for in this act in order that the
    56  commission may maintain an accurate and timely effective  data  base  of

        S. 2155                             6
 
     1  the official text of the laws of the state of New York in furtherance of
     2  effecting  the  provisions  of  section  44  of  the legislative law and
     3  section 70-b of the public  officers  law;  and  provided  further  that
     4  section  nine  of  this  act  shall  take effect upon the concurrence by
     5  members of the Delaware River Basin Water Commission.
     6    § 8. This act shall take effect on the  same  date  and  in  the  same
     7  manner as chapter 500 of the laws of 2012 takes effect.
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