Appellate Division finds extraordinary circumstances in permitting the plaintiff to file a late Notice of Claim against the public defendants.

The plaintiff underwent surgery at the hospital to treat her scoliosis and back pain. After waking, she experienced increased pain in her leg and decreased movement and sensation. Upon recommendation from the defendant surgeon, the plaintiff underwent a second surgery, followed by months of rehabilitation and physical therapy. She ultimately failed to regain the use of her leg and was left wheelchair-bound and incontinent. The plaintiff consulted with several attorneys, one of whom informed her that if any defendants are state employees, she would be required to file a Notice of Claim within 90 days pursuant to the Tort Claims Act. The trial court ultimately dismissed the plaintiff’s motion for leave to serve a late tort claim notice and denied her motion for reconsideration. The Appellate Division reversed, holding that extraordinary circumstances existed to permit the plaintiff’s late tort claim notice. Specifically, the plaintiff’s mental and physical debilitation following the second surgery, which she believed may have fixed the issues from the first surgery, constituted extraordinary circumstances beyond the norm—she lost the use of one leg, became incontinent, was wheelchair-bound, and was administered morphine, oxycodone, and antidepressants in addition to engaging in rehabilitation efforts. These circumstances had an “impact on [plaintiff’s] very ability to pursue redress and attend to the filing of a claim.”

_{Case Law Alerts, 4th Quarter, October 2019}

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