If a case is going to name a municipality as a defendant, the plaintiff must give the municipality a heads up, via a fairly short form called a Notice of Claim.
You’ve focused on Notices of Claim in newspaper articles, generally when you see someone claiming outrageous damages against the City–dollar numbers soaring into seven or eight figures. And you glance at the article, and say, “Whaaa? A broken foot is worth $800 million?”
A relevant tale: I once worked on a big civil rights case that started with a Notice of Claim filed by another lawyer, i.e., not my firm (we came into the case a few months later). That lawyer, for whom I’ve never gotten over my contempt, claimed more than $150 million dollars.
It was embarrassing when the press reported this figure, as of course they did. When my guys entered the case, I remember them dealing with that absurd figure, that insane fait accompli, stoically.
The case settled very successfully for over $8 million.
When I broke a bone in my foot on a badly maintained sidewalk, the lawyers I retained told me we’d be filing a Notice of Claim against the City.
I objected. As I understood it, sidewalks in front of privately owned buildings were the responsibility of the owner. I expressed my distaste for filing a Notice of Claim against my own city when I had no reason to believe it was at fault.
But here’s what the Foot Lawyers explained: Since we couldn’t be absolutely sure at this incipient stage that the City was not responsible for that sidewalk, if we failed to file a claim against them and they were found to be responsible, that would be it for my lawsuit. Zapped even before it began.
OK, I understood this. But I also understood that we were thus forcing the City to expend monies, i.e., taxpayer dollars, to defend itself in trying to get the case against them dismissed.
Still, I was told it had to be done this way. So it was done. (How much did they claim on my Notice to the City? I don’t know. Sure hope it wasn’t a number that makes me squirm. And this reminds me to call the Foot Lawyers and get a copy of that Notice of Claim. Although the Foot Lawyers never respond to my e-mails or phone calls.)
As the case inched onward, I realized why the Foot Lawyers were right. Three and a half years later, the City is still in this case as a defendant.
Here’s why. The particular sidewalk in my lawsuit is made of multiple flagstones, not pedestrian cement. And it seems as if certain Village sidewalks, including the one that broke my metatarsal, were originally comprised of flagstones. The mandate that they be replaced by similar stones–particularly in the landmark neighborhood of the West Village–is governed by the Landmarks Commission of the City of New York.
Of course, in my view (and this might be disputed by my own lawyers) Landmarks isn’t responsible for keeping that sidewalk maintained. The owner is. And as I know full well from my own genuinely pleasant dealings with the Landmarks Commission on behalf of my own building, it’s the owner who’s responsible for conforming (or not conforming) to Landmark and other City agency rules.
So I grit my teeth and feel sort of guilty, but the City remains as a defendant in my lawsuit.
Next: Your Notice of Claim, how and when to file it.