
Failing to file a notice of claim pursuant to Civil Practice Law and Rules (“CPLR”) Section 9802 can become a trap for the unwary litigator who commences a hybrid proceeding-action (Article 78 claim(s) combined with plenary cause(s) of action) or a strict Article 78 proceeding against a village (see South Nyack Police Assn. v Village of South Nyack, 229 AD3d 635 [2d Dept 2024]).
Section 9802 provides that “no action shall be maintained against the village upon or arising out of a contract of the village” unless a notice of claim has been served. Although this language appears limited, Courts have interpreted it more broadly. Thus, a party bringing any action against a village must plead and prove, as a condition precedent to the litigation, that the party served a written verified notice of claim. The party’s failure to comply with this requirement can be fatal to the claim(s) asserted.
In South Nyack Police Assn., police officers and their association commenced an Article 78 proceeding against the village, mayor, and trustees, seeking to compel the village to compensate the officers for unused sick time. The Supreme Court, Rockland County, converted the Article 78 proceeding into a plenary action for breach of contract and declaratory relief, and denied village’s motion to dismiss. Upon reargument, the Supreme Court granted the village’s motion to dismiss based on the officers’ and association’s failure to comply with Section 9802 (i.e. the officers and association failed to serve a notice of claim).Continue Reading The Importance of Filing a Notice of Claim Against A Village: CPLR 9802 – A Trap for the Unwary Litigator