Suing the Government – Sovereign Immunity

Under the doctrine called “sovereign immunity,” the United States, New York and other states are immune from suit for torts caused by conditions on their property or by acts of their employees and agents.

I was injured while on government property or by a government agent. Can I sue?

Yes, New York has waived its sovereign immunity, so long as victims of torts follow strict guidelines when attempting to recover from New York State or from a municipality. New York law requires that you file a “notice of claim” to take advantage of the waiver of sovereign immunity. This notice is in addition to the statute of limitations imposed by state law on claims against the government.

Suing the Government- The government violated my civil rights: New York and its municipalities are bound by the rights enumerated in the U.S. and State Constitutions, as well as a variety of civil rights laws. If you are discriminated against by the state or by a municipality and are injured, or if you are the victim of police misconduct, such as false arrest and imprisonment, malicious prosecution, or excessive or unnecessary use of force, you may recover from the person who violated your rights, but most often, you will recover from the municipality that employed the person.

You must follow the same guidelines for suing to recover for civil rights violations as for tort injuries. New York law requires that you file a notice of claim to take advantage of the waiver of sovereign immunity. This notice is in addition to the statute of limitations imposed by state law on claims against the government.

 What’s a Notice of Claim, and who files it?

Your attorney can file a Notice of Claim for you. It is a written document informing a municipality that you have been involved in an accident or incident on municipal property that resulted in injury. The notice will include:

• Your name (and any other claimants), your attorney’s name and your addresses;
• The nature of your claim, i.e., what happened;
• The time and place where the claim arose;
• The items of damage or injuries claim to have been sustained.

After you file a Notice of Claim, the municipality has 30 days to request a preliminary hearing to enable it to begin its investigation of your claim. The hearing can include a request for a physical examination of your claimed injuries.

Are there exceptions to the 90-day filing rule?

A court may, in its discretion, extend the 90-day filing time, but the time it allows for a late filing may not exceed the amount of time you have to file suit under the applicable statute of limitations.

In determining whether to extend the deadline, the court will take into account the reasons you failed to file within 90 days, particularly whether the municipality had actual knowledge of the circumstances surrounding the claim within 90 days or a reasonable time after 90 days. The court may also consider a host of additional factors that may excuse failure to file in a timely manner, but it is not easy to extend the time limit.

How long do I have to sue after I file my Notice of Claim?

For most cases, you must file your lawsuit against the municipality within one year and 90 days of the event the caused your injury. However, if the suit is one for wrongful death (of a family member, for example), the representative of the deceased has two years from the date of death to file the suit.

I have been injured on municipal property or in an accident caused by the wrongful conduct of a municipal employee:

• Seek medical attention immediately
• Document your claims as thoroughly as possible
• Your time to sue is limited; contact a personal injury lawyer ASAP