In order to pursue a claim against a municipality, such as a city, town, village or municipal housing authority, it is necessary to file a Notice of Claim within 90 days of the injury. Unbelievable as it may seem, this is true even for a child of the tender age of three. Filing a Notice of Claim is a prerequisite to the later filing of a lawsuit. What happens, then, when a lead poisoned child’s parents fail to file the requisite Notice of Claim within 90 days of the occurrence of the lead poisoning, and the child, upon reaching the age of 18, finally files the Notice of Claim herself? It may be rejected as “late,” just as it was by the Rochester Housing Authority (RHA) in the case of Tiara Rose. The trial court overruled the RHA and allowed the late filing of the Notice of Claim. The RHA appealed to the Appellate Division in Rochester, NY.
In Tiara Rose v. Rochester Housing Authority, 859 N.Y.S.2d 806 (4th Dept. 2008), the Appellate Division upheld the trial court’s ruling that the plaintiff, Tiara Rose, should be allowed to file her Notice of Claim. Anne E. Joynt, an attorney at the Firm, filed the initial Notice of Claim against the RHA, and presented the case before the Appellate Division. Ms. Joynt argued that the RHA could not claim lack of knowledge of the essential facts underlying Ms. Rose’s case. The RHA was notified in 1991 that the plaintiff had been diagnosed with lead poisoning. In response, the RHA arranged to have the premises inspected for lead paint a mere one week after the child’s diagnosis. The Court found that in this case the RHA could not claim any prejudice, given the knowledge that they had of the situation so soon after it occurred. Furthermore, the plaintiff was only three years old when she was lead-poisoned, and could not seek legal representation for her injury on her own.
This decision marks a major victory in holding municipalities accountable for injuries caused to children. No longer can a municipal housing authority hide behind the requirement of filing a Notice of Claim within 90 days where it can be shown that the RHA knew the essential facts of the child’s injurious exposure at or near the time it occurred.