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.

In light of the new evidence, petitioner served the school district with a notice of claim alleging that the sign constituted a hazardous condition. Because five months had passed since the expiration of the 90-day notice period, petitioner moved by order to show cause seeking either an order deeming the late notice timely served nunc pro tunc or permission to serve a late notice of claim pursuant to GML §50-e (5). Id. at 462. Section 50-e (5) provides a number of factors for courts to consider in assessing whether to grant a plaintiff leave to serve a late notice of claim, including “whether the delay in serving the late notice of claim substantially prejudiced the public corporation in its defense on the merits.” GML §50-e (5). Among other things, petitioner argued that the school district did not suffer substantial prejudice by receiving the late notice of claim because: (1) it received notice of the incident when petitioner reported the details to his son's high school shortly after its occurrence; and (2) the police report would allow the school district to “reconstruct the scene and to interview witnesses.” In opposition to petitioner's submission as to substantial prejudice, the school district merely argued in an attorney's affirmation that petitioner failed to carry his burden and that “the court should infer that the passage of time has created substantial prejudice due to fading witness memories.” Newcomb, 28 N.Y.3d at 462-63.