Michaels Bersani Kalabanka Helps Get Big Win in Highest Court in New York (Court of Appeals)

Winning is fun, especially when it’s a win not only for your client, but for many other people as well.  I am proud to say I recently helped win a victory for people injured through the negligence of governmental entities such as counties, cities and school districts.  In New York, these entities are known as “public corporations”.  Let me explain.

The case, Newcomb v Middle Country Central School District, was about a teenager struck by a hit-and-run car while attempting to cross an intersection near his high school. He suffered a life-altering brain injury.  His parents hired a lawyer who, among other things, tried to investigate whether other people, besides the driver, might have contributed to accident.  In other words, was anyone besides the driver at fault?  The lawyer did everything he could to get his hands on the police file.  But unfortunately the police delayed eight months in getting the lawyer the photos of the accident scene, the police report and other investigative materials.

Once the lawyer got the photos, he noticed that the School District had placed a temporary sign (announcing a high school musical) at the corner of the intersection.  The sign appeared to obstruct the line of sight between pedestrian and driver. This was likely a cause of the pedestrian not seeing the car approaching, and the driver not seeing the teenager as he stepped off the curb.

So sue the school district, right?  Not so simple.  In order to sue the School District, the lawyer was required to serve the school district with a legal document called a “notice of claim” within 90 days of the date of the accident (General Municipal Law 50-e).  Now it was too late.  Eight months had gone by since the accident because of the police delay.  Still, there was a ray of hope.  Under the law (General Municipal Law 50-e), the lawyer could ask a court to allow him to file late.  The Court has discretion to allow the late filing if, among other things, the public corporation did not suffer “substantial prejudice” from the delay.  In other words, if the school district did not, because of the delay, miss any important opportunities to get a timely investigation of the accident, secure evidence and witness testimony, etc., then there would be no “substantial prejudice” due to the delay.

After making the application to “late-serve” the notice of claim, the lawyer got bad news:  The court denied him permission to serve the notice of claim late because, among other things, the plaintiff had not met his burden of showing that the School District had suffered no “substantial prejudice” due to the delay.  The Court said that this was entirely plaintiff’s burden, and since plaintiff had not ruled out the possibility that key witnesses were no longer available, or that physical evidence had been destroyed, plaintiff failed to meet that burden.  The lawyer appealed but the appellate court agreed with the lower court and would not let the lawyer proceed with the case.

I was asked to write a Brief for the New York Court of Appeals, the highest Court in the State, to try to get this result reversed.  The problem I saw with the lower courts’ putting this “burden” on plaintiff was that all the knowledge of whether the school district was “prejudiced” by the delay in filing the notice of claim is naturally in the hands of the School District, and plaintiff has no access to that knowledge.  I filed an “Amicus Curiae Brief” arguing that defendant, not plaintiff, should have the burden of proof on the issue of “substantial prejudice”.

The Court of Appeals agreed with our analysis and changed the rule in New York so that now the plaintiff needs only meet a minimal initial burden showing that the public corporation will not be substantially prejudiced and then the burden shifts to the public corporation to rebut that showing with particularized evidence showing exactly how it is prejudiced. The Court agreed with our argument that “the public corporation is in the best position to know and demonstrate whether it has been substantially prejudiced by the late notice”.  On the facts of this case, the Court held that plaintiff had met his minimal initial burden, and that the School District had then failed to show that it had suffered “substantial prejudice” due to the delay.

So this seriously injured teenager can now sue the School District and hopefully get full justice.  And all future plaintiffs injured by the negligence of school districts, cities, counties, etc., also have a better chance of getting their day in court.

Yes it was a big win both for this poor teenage kid and his family, and for future victims of the negligence of New York governmental entities.  Proud to be a part of this win!

Keep safe!

Mike Bersani

Email me at:  bersani@mbk-law.com     I’d love to hear from you!

Syracuse NY Personal Injury Lawyers
Michaels Bersani Kalabanka


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