In the past term, the Court of Appeals issued several decisions which examined how issues of governmental liability intersect with different stages of the litigation process. In Newcomb v. Middle Country Central School District, 28 N.Y.3d 455 (2016), the Court considered the proper allocation of the burden of proving lack of “substantial prejudice” to a governmental entity when a plaintiff seeks to serve a late notice of claim under General Municipal Law §50-e (5). In Turturro v. City of New York, 28 N.Y.3d 469 (2016) and Tara N.P. v. Western Suffolk Board of Co-op. Educational Services, 28 N.Y.3d 709 (2017), the Court revisited the circumstances under which a municipality is entitled to governmental immunity in the context of roadway safety and school safety, respectively. Finally, in Artibee v. Home Place, 28 N.Y.3d 739 (2017), the Court addressed the availability of apportionment under CPLR §1601 in an action filed in Supreme Court where the plaintiff was prevented from joining the state of New York in the action pursuant to the doctrine of sovereign immunity.

'Newcomb'

In Newcomb v. Middle Country Central School District, 28 N.Y.3d 455, 461, a 16-year-old student suffered serious injuries in a hit-and-run collision when he was struck by a motor vehicle while crossing an intersection. The student was attending a high school located in Middle Country Central School District at the time of the occurrence, and his father (petitioner) promptly provided the school with notice of the incident, where it occurred, and the injuries his son sustained. Approximately one month later, petitioner's attorneys requested a copy of the police file, but the local police advised that the report would not become available until its investigation was completed. Petitioner then hired a private investigator to photograph the accident location and, in accordance with General Municipal Law §50-e (1)(a), served notices of claim within 90 days of the incident on the state, the county, and the town. Id.

Petitioner's attorneys did not receive the police accident file until six months after the date of the incident, despite repeated requests. The records included photographs, which were taken closer to the date of the incident than those taken by petitioner's private investigator. Those pictures indicated that a large sign located on the corner of the intersection might have contributed to the occurrence of the incident. The sign was removed prior to the expiration of the 90-day period for serving a notice of claim and did not appear in the photographs taken by petitioner's private investigator. Petitioner's attorneys received enlarged copies of the photographs approximately one month later, which further revealed that the sign advertised a play at another high school located within the same school district. Id. at 461-62.