Legal Question in Civil Rights Law in New York

Defendant's Lawyers Made a Mistake

I am preparing for a civil suit against a city. After filing my notice of claim, pursuant to NY General Municipal Laws, their attorney requested an examination of myself under oath in their office. However, the section of law requires that in order for this demand to be effective on a pro se plaintiff, that it be either delivered personally or by registered or certified mail. They used plain postal mail.

My question is should I simply ignore the demand and not attend the hearing, perhaps encouring them to send another notice except this time by certified mail if they realize their mistake or if they want to make sure there is no possibility of me denying ever receiving a notice? Or should I send them a letter back simply stating that I received their letter, leading them on to believe that they have properly notified me, and when I fail to show for the hearing, leading them to believe that my claim is no longer valid since I never showed? After 90 days has passed from my notice of claim, I would file my suit. They would of course use my failure to show as a grounds for dismissal. I would rebut with their err in notifying me. Would my sending an acknowledgement then not showing be held against me if I did this?


Asked on 12/30/04, 10:37 pm

2 Answers from Attorneys
Stephen Loeb Law Office of Stephen R. Loeb

Re: Defendant's Lawyers Made a Mistake

The purpose of certified mail is to establish proof of service, if you admit service, the certified mail requirement will be deemed waived. If you want to get into extensive motion practice, and possibly years of appeals at substantial cost, you can try to press the issue of their failure to serve you properly but in the end your failure to submit to an oral exam (a requirement under the law, when requested)is more likely prejudicial to your right to bring a lawsuit then their failure to notify you within specified technical requirments will be to the municipality's right to dismiss your calim for failure to appear.

Should you like to discuss this or any other legal matter, you can call my office to schedule an appointment for a consultation or in the alternative, I can be reached for on-phone low-cost legal consultation at 1-800-275-5336 x0233699.

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Answered on 12/31/04, 10:04 am
Mark S. Moroknek Kelly & Curtis, PLLC.

Re: Defendant's Lawyers Made a Mistake

No. Eventually you will lose out if you try to play games. If you want to play around with technicalities get a lawyer.

The Notice of Claim requirement and the examination under oath (GML 50-H hearing) are pre-requisites to actually commencing an action.

They serve the purpose of allowing the municipality an opportunity to investigate and possibly settle before the suit.

While the 50-H can be waived, if it is demanded,

you should simply get it done. If you try to take the position you suggest you will most likely end up with an appeal.

You received the notice, so how are you prejudiced?

This belongs under the category of Municipal Law or General Civil Procedure.

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Answered on 12/31/04, 7:33 am


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