On Dec. 22, 2016, the Court of Appeals issued its decision in Matter of Newcomb v. Middle Country Sch. Dis., 28 N.Y.3d 455 (2016), addressing one of the required elements to obtain leave to file a late Notice of Claim. Before Newcomb, all four departments of the Appellate Division demonstrated inconsistent treatment of the substantial prejudice element of the late Notice of Claim inquiry. All four departments had decisions on the books in which petitioners bore the burden to demonstrate that the municipality would not be substantially prejudiced. Id. at 466. However, all four departments also issued decisions in which this burden was initially placed on the municipality to demonstrate the lack of substantial prejudice or shifted the burden from the petitioner to the municipality when the petitioner met its initial burden. Id. In Newcomb, the court resolved, for the most part, this split.
The Court’s Decision in ‘Newcomb’
Newcomb arose from a March 23, 2013 hit-and-run accident. Shortly after the accident, petitioner notified his son’s school, within the respondent school district, of the accident, including the location. Petitioner’s counsel requested a copy of the police department’s investigation of the accident but was informed it would not be released until the investigation concluded. Petitioner’s counsel also retained an investigator who photographed the scene of the accident, and Notices of Claim were served on the State, County, and Town.
