Holding Court is a series by retired Rye City Court Judge Joe Latwin. Latwin retired from the court in December 2022 after thirteen years of service to the City.
What topics do you want addressed by Judge Latwin? Tell us.
By Joe Latwin
It’s good to be the King.
In History of the World – Part 1, King Louis (portrayed by Mel Brooks) after naughty behavior tells his nobles to excuse his misdeed, “It’s good to be the King!”. This is actually historically accurate. In Medieval times, the King was the embodiment of the law and could not be sued. It’s called Sovereign Immunity and carries through to today. In England, King Charles cannot be prosecuted. He doesn’t even need a drivers license! Since we have no King, our governments have waived their sovereign immunity by creating special courts in which the State can be sued (New York’s Court of Claims) and special procedures to be followed in order to sue the State. One of these procedural pediments is the requirement of a notice of claim as a condition that must be met before filing suit against a government entity. The stated purpose of the notice requirement is to allow the government to investigate claims and gather evidence.
Before you can sue a city, county, town, village, fire district, school district, or certain government authorities, like the MTA, for negligence you must file and serve a notice of claim within 90 days. Other notices may also be required for other type of claims, such as contract claims against towns.
Often the first thing you must determine is which government is liable. For instance, if you claim the injury was cause by improper design or maintenance of a road, you need to be certain who owns the road. In Rye, we have many local streets, but some are County roads – such as Midland Avenue and Wappanoca Avenue. Part of Playland Parkway is actually a part of the N.Y. State Thruway authority property. If you give Rye notice for a County or State road incident, you may not be able to sue the responsible government. Often, if unsure, a careful attorney to be safe will file notices with every possibly responsible government entity. Sometimes, you just don’t think the responsible party is a governmental agency. If you are injured by malpractice in the Westchester Medical Center (a Westchester County hospital) or a New York City run hospital, you must give notice.
The notice of claim must be in writing, sworn to by or on behalf of the claimant, and must set forth: (1) the name and post-office address of each claimant, and of his attorney, if any; (2) the nature of the claim; (3) the time when, the place where and the manner in which the claim arose; and (4) the items of damage or injuries claimed to have been sustained so far as then practicable.
The notice of claim must be served on the defendant by (1) personal delivery; (2) registered or certified mail; (3) the Secretary of State for municipal entities; or (4) defendant’s regularly engaged attorney. Various laws describe the actual person upon whom service can be made on behalf of the government entity for example: upon the city of New York, to the corporation; upon any other city, to the mayor, comptroller, treasurer, counsel or clerk; upon a county, to the chair or clerk of the board of supervisors, clerk, attorney or treasurer; upon a town, to the supervisor or the clerk; upon a village, to the mayor, clerk, or any trustee; upon a school district, to a school officer; & upon a park, sewage or other district, to the clerk, any trustee or any member of the board.
If you fail to serve a timely notice of claim or fail to properly serve the proper party, you cannot sue that party!
