By: Akanksha A. Panicker
Negligence by government agencies can lead to many injuries suffered by the victim. Consequently, suing a government agency provides the individuals who have suffered harm to be recompensed by the overseeing department. However, the procedure to institute this suit requires a significant amount of legal backing, and frivolous claims are seldom entertained. In the United States, the federal government has sovereign immunity and may not be sued unless it has waived its immunity or consented to suit. The United States as a sovereign is immune from suit unless it unequivocally consents to be sued.
The concept of ‘sovereign immunity‘ additionally also prevents the city and state of New York from being sued unless they consent. Consent is easily obtained, although it must be accepted on a case-wise basis and under notice provided by the victim or their representatives. Failure to file the documents appropriately means that the government entity is well within its rights to disregard the suffered damages.
Once the Notice of Claim is filed, the city will request a hearing in which the accident victim will be required to testify under oath. Only then would the individual be able to sue the city.
[1.0] HOW TO SERVE NEW YORK CITY
When attempting to sue a Municipality or Government Agency, one must be aware of the concept of sovereign immunity. A city, county, the State of New York, or other government agencies cannot be sued unless they consent to the suit being instituted. The requirement in New York is the filing of a Notice of Claim.
A Notice of Claim must be filed within a specific period of time, or the lawsuit cannot be filed at all. Customarily that time period is 90 days. The New York City Comptroller’s office is responsible for monitoring the settlement of claims against the city. Where a request is made, the Comptroller’s Office is required to review the same. The Comptroller’s Office will extend a mediation offer or an offer for settlement if they consider it apt based on the investigation results.
A precondition to holding the City liable for injuries that arise from potentially hazardous circumstances is noticed, as laid down by New York law. A notice of claim must be properly served within 90 days from the date of occurrence of the injury. On the office of the Comptroller, service is required to be via [A.] electronically via the claim system, [B.] personal delivery, or [C.] registered or certified mail. A notice of claim must be filed in writing.
[1.1] REQUIREMENTS OF A NOTICE OF CLAIM
A Notice of Claim must have [A.] the name and address of both the party filing the claim and the attorney representing them, [B.] details and the nature of the request, [C.] nature of the injuries, [D.] damages sought. It is necessary for the Notice of the claim to be sworn to and attested in a verification process. Since Claim’s Notice serves as the first notice that the municipality or the City would know about, it is necessary to furnish them with full and sufficient facts of the case.
If a notice of claim is required to be filed against the City of New York, it is vital to ensure that this Notice has been provided to the right municipality or agency. This is because the filing of the claim in an agency that is no qualified to hear and return said notice will render it void, often leaving the claimant without remedy. Especially since Notice of Claim is time-bound, it is necessary to ensure that the ninety-day period for filing has not run its course. It is very seldom that a Court permits the filing of a late Notice of claim.
Filing a claim within the notice period is not the same as complying with the Statute of Limitations. The Statute of Limitations is an explicit timeframe within which a lawsuit must be filed. However, the Statute of Limitations only comes into play once the minimum requirements for filing a Notice of Claim have been reached.
[2.0] HOW TO SUE THE STATE OF NEW YORK
Suing the state of New York means that the suit must be brought in the New York State Court of Claims to get damages. Of course, there are certain exceptions in public authorities. Furthermore, the court does not have jurisdiction over individuals, whether they are in the State’s employ. If a state agency is at fault, the suit should not be against the particular agency but, rather, against the State of New York.
Individual public bodies with a distinct legal status and identities are considered to be sued via their nature as state entities. Still, they can also be prosecuted under their own names. A portion of these public authorities are not charged in the Court of Claims, but in State Supreme Court, under the provisions of their local codes: the Public Authorities Law of the General Municipal Law. The statute defines the particular area where the agency may be sued; the Court of Claims or the State Supreme Court. Municipal governments are prosecuted under the General Municipal Law.
The Court of Claims does not have authority over claims against county jails, detention institutions, or the charges of carelessly servicing county roads. Furthermore, in addition to the Attorney General, the New York State Thruway Board, the New York City University of New York, and the New York State Power Authority will also require the particular defendant to be served.
Like for the city, most claims against the State require action to be taken within a very narrow framework. Common between suits against the State as heard in the Court of Claims or against a local government as heard in the State Supreme Court is the notice period for undertaken actions. This period usually lasts 90 days.
[2.1] SERVING NEW YORK STATE
It is also important to prepare a claim to sue in the Court of Claims. This claim must be filed with the court clerk and also served on the New York State Attorney General. As usual, a personal delivery service is preferred, although a certified mail return receipt is also acceptable. However, post COVID-19 concerns, service requirements have also changed.
A USD 50 fee is required when filing a Claim. It is important to bear in mind that the Claim can only be deemed filed when it is actually received by the Clerk of the Court or the Chief Clerk. The claim can be filed by personally delivering it, by regular mail, and even by fax.
For certain cases, lawsuits may be filed even after three years of accrual of the right to claim, although some claims can only be filed within one year of right accrual. Personal and property injury incidents require claims to be filed within 90 days. For wrongful death, the statute of limitations for litigation is ninety days from the appointment of an executor or administrator of the estate of the deceased but not outside two years after the demines. Breach of contract requires a six-month statute of limitations. A person’s condition or disability can extend the time limit to two years after it ends. Additionally, The suit must be started within one year and 90 days of the injury. This applies to all the city’s agencies.
The Claim contains vital details about when and how the claim occurred, and the harm documentation should be included to understand the damages claimed. It must provide the State with ample notice and must assert evidence sufficient to state an argument. If it cannot furnish the same, the case may be thrown out.
When a prospective claimant issues a Notice of Intent to File a Claim, it will extend the filing of their claim as well as the service to at least one year from the date the claim was incurred. The Notice of Intention document must be served upon the Attorney General, and where the defendant is a non-State of New York entity, the form is must also be done on the non-state entity.
When a claim is not filed appropriately, one may file a motion asking to later file the request. If an individual pleads and files the Notice of Intention but refuses to comply with the service requirements or filing a lawsuit, they may make a motion to treat the Notice of Intention as a claim. The state of New York has a variety of divisions, departments, agencies, and commissions. Just because an entity has ‘New York State’ in its title does not mean that it is part of the state; it may be a public corporation with its own status.
[3.0] SERVING THE UNITED STATES AND ITS AGENCIES, CORPORATIONS, OFFICERS, OR EMPLOYEES.
To serve the United States, a party must deliver a copy of the summons and the complaint to the United States attorney. This attorney is specific to the district where the action is brought and is an imperative part of the process. However, service may be made upon an assistant United States attorney or clerical employee whom the United States attorney designates in writing filed with the court clerk.
Service by registered and certified mail may also be done. A copy of the summons and complaint should be sent either to the [A.] civil-process clerk at the United States attorney’s office or [B.] to the Attorney General of the United States at Washington, D.C. Additionally, if the action challenges an order of a non-party agency or officer of the United States, a copy of the summons and complaint should be sent by registered or certified mail to the agency or officer.
It must be noted that service upon a United States agency or corporation would require assistance upon the United States and a copy of the summons and complaint to the agency, corporation, officer, or employee. In fact, an officer or an employee of the United States can be sued in an individual capacity for an act or omission that occurred in conjunction with duties performed on behalf of the United States, as long as the United States has also been served. For the above provisions, service must be done through registered or certified mail.
[3.1] FEDERAL TORT CLAIMS ACT
A federal employee’s negligent action can lead to a lot of worry for the injured individual and their family. The Federal Tort Claims Act (FTCA) provides individuals the right to file a claim for the damage that they have incurred. Since citizens have often not been able to sue their state under the umbrella of sovereign immunity, the FTCA constitutes a limited waiver of sovereign immunity, permitting citizens to pursue some tort claims against the government.
An FTCA claim must be against a federal employee, not an independent contractor. This would provide a restriction on who can be sued since a prerequisite for this is a requirement for the negligent conduct conducted during the federal employee’s time holding the office. It has been customary for claims of negligence rather than willful misconduct to be allowed under the FTCA. An exemption to this occurs when a federal law enforcement official has perpetrated the wrongdoing.
It is necessary to file a Notice of Claim with the federal agency responsible for the injury before instituting a claim against the government insofar as a Notice of Claim acts as preliminary information communicated to seek restitution government. For a federal lawsuit, Standard Form 95 must produce knowledge about themselves and the unfortunate circumstances that they have suffered. Furthermore, the damages sought must be provided in a manner that quantifies the same in monetary values. While Standard Form 95 is not mandatory, it streamlines the process of submitting the claim for approval.
Suing the city, the state of a country seems like a daunting task on the face of it. While it is more complicated than suing a private citizen, suing the government follows a structure that has been laid down through several statutes. It is discouraging when the lawsuits are subject to a lengthy and sometimes confusing list of limitations. Yet, a case can be instituted with relative ease as long as the claim requirements have been satisfied.
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1. The United States Supreme Court in Price v. the United States observed: “It is an axiom of our jurisprudence. The government is not liable to suit unless it consents thereto, and its liability in a suit cannot be extended beyond the plain language of the statute authorizing it.
2. Sovereign immunity, or crown immunity, is a legal doctrine whereby a sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution, strictly speaking in modern texts in its own courts. A similar, more vital rule as regards foreign courts is named state immunity.
3. Tort claims against some Authorities should not be served on the Comptroller’s Office and must be done on the Authority or its designated agent:
- New York City Transit Authority (NYCTA)
- New York City Housing Authority (NYCHA)
- Triboro Bridge & Tunnel Authority
- Port Authority of NY and NJ
- Manhattan, Bronx Surface Transit Operating Authority (MABSTOA)
- New York City School Construction Authority
- New York City Health + Hospitals (HH)
- Staten Island Rapid Transit Authority
- MTA Bus Company (MTABC)
- Metropolitan Transportation Authority (MTA)
- Hugh L. Carey Battery Park City Authority
4. New York City Administrative Code 7-201(c)(2)
No civil action shall be maintained against the city for damage to property or injury to person or death sustained in consequence of any street…[or] sidewalk…being out of repair, unsafe, dangerous or obstructed, unless it appears that written notice of the defective, unsafe, dangerous or obstructed condition, was actually given to the commissioner of transportation or any person or department authorized by the commissioner to receive such notice, or where there was the previous injury to person or property as a result of the existence of the defective, unsafe, dangerous or obstructed condition, and written notice thereof was given to a city agency, or there was written acknowledgment from the city of the defective, unsafe, dangerous or obstructed condition. There was a failure or neglect within fifteen days after the receipt of such notice to repair or remove the defect, danger or obstruction complained of, or the place otherwise made reasonably safe.’
5. Under the New York State General Municipal Law § 50-e
6. New York Consolidated Laws, Public Authorities Law – PBA § 1317. Actions against the authority
As a condition to the consent of the state to such suits against the police, in every battle against the law for damages, for injuries to real or personal property or the destruction thereof, or personal injuries or death, the complaint shall contain an allegation that at least thirty days have elapsed since the demand, claim or claims upon which such action is founded were presented to a member of the authority or other officer designated for such purpose and the administration has neglected or refused to make an adjustment or payment thereof.
7. NY Gen Mun L § 119-O (2015)
8. How to serve the attorney general: Consistent to maintain social distancing for the health and safety of the public and employees of the OAG, the OAG is encouraging parties to effect personal service by mail through the procedure outlined in CPLR 312-a.
See: Notice for Personal Service New York State Attorney General, https://ag.ny.gov/service-oag.
9. Inclusive of a United States officer or employee sued only in an official capacity.
10. Federal Rules of Civil Procedure, Rule 4. Summons
11. All existing, pending, and threatened litigation, as well as unasserted claims, should be reported by the Department of Justice and all other government agencies using their respective appropriate formats
12. The Federal Tort Claims Act (August 2, 1946, ch.646, Title IV, 60 Stat. 812, 28 U.S.C. Part VI, Chapter 171 and 28 U.S.C. § 1346) (‘FTCA’) is a 1946 federal statute that permits private parties to sue the United States in a federal court for most torts committed by persons acting on behalf of the United States.