Filing an Injury Claim Against the Government in New York

If someone hurts you intentionally, or through carelessness, you may be able to seek compensation through a personal injury lawsuit. But what if the harm was caused by the government, and not a private citizen or company? Like every state, New York has special rules for personal injury claims (also called "tort claims") against government agencies and employees.

In this article we'll give you an overview of how New York's state tort claims process works, and also discuss when you might be better off pursuing other legal options. We'll also talk about the rules that apply if you've been harmed by a local government agency or employee.

You're Allowed to Sue the Government in New York

It's easier to file a tort lawsuit against the government in New York than in most other states. That's because New York has waived it's so-called "sovereign immunity." Sovereign immunity is a legal doctrine that says you can't sue the government without its permission. States can use sovereign immunity to:

• bar most personal injury lawsuits against the government (even if a private party would be liable for doing the same thing), and
• require you to complete a time-consuming bureaucratic claims process before you can file a lawsuit in court.

But New York has decided not to protect itself from lawsuits through sovereign immunity. Under the New York Court of Claims Act, the state consents to being sued in court just like the defendant in any personal injury lawsuit. (N.Y. Ct. Cl. Act § 8 (2024).)

When Can File a Tort Claim Against the New York Government?

The New York Court of Claims Act allows plaintiffs to bring personal injury lawsuits against the government in nearly any situation where private individual could be sued for negligence or an intentional tort. But these lawsuits aren't heard in the same court as lawsuits against private parties. They must be filed in a separate court called the Court of Claims.

What Kinds of Incidents Can Lead to a Negligence Claim?

In a negligence case, the plaintiff argues that:

• the defendant had a legal obligation to be careful
• the defendant failed to meet that obligation, and
• the plaintiff was harmed by this carelessness.

So, for example, you could have a negligence claim against the government in New York for injuries arising from:

• A car crash caused by a state employee's careless driving.
• A fall caused by the maintenance staff's failure to address dangerous or defective conditions in a government building.
• Medical malpractice committed by health care workers at a public medical facility.

What Kinds of Incidents Can Lead to an Intentional Tort Claim?

Intentional torts are when someone hurts you on purpose—for example, by committing assault. If you're intentionally harmed by the New York government, you may be able to seek compensation in the Court of Claims.

Sometimes an intentional harm—such as an illegal search by the police—is both a tort and a violation of your rights under New York's constitution. In that case, you may have additional legal options beyond filing a case in the Court of Claims. So, you would benefit from consulting with an attorney who has experience with these kinds of cases.

(Brown v. State, 89 N.Y.2d 172 (1996).)

The Court of Claims Can Only Grant You Financial Compensation

In certain lawsuits, you're allowed to sue for so-called "injunctive relief." This means that you can ask the court to order the defendant to do something (or to stop doing something).

But you can't ask for injunctive relief in a personal injury case against the New York government. You're only allowed to ask for money damages--that is, financial compensation for the harm you've suffered.

Also, state law limits the kind of damages you can receive from the government. In most personal injury lawsuits you can receive extra money (called "punitive damages") if you show that the defendant's actions were particularly reckless or malicious. But if the defendant is the New York government, you can only receive money that directly compensates you for the harms you've suffered (including both your financial losses, and any non-economic damages like pain and suffering). (Krohn v. New York City Police Dept., 2 N.Y.3d 329 (N.Y. 2004).)

Keep in mind that a personal injury lawsuit against the government may not be your best (or only) option for seeking financial compensation. We'll talk more below about situations where it could make sense to seek injunctive relief.

When Can You Sue the Government for the Actions of an Employee?

Under the legal doctrine of "respondeat superior" organizations are sometimes legally responsible for harm caused by their employees. But there are limits to this kind of liability. In New York, similar limits apply to both companies and the government.

The employee must have been on the job. The key question is whether the government employee was "acting as" an employee when they hurt you. So, for example, imagine that a government employee hurts you in a car accident. You can only hold the government responsible if the employee was driving as part of their job. If they weren't, then you can only sue them in their "personal capacity." That means you can only recover damages from the employee, not the government.

The government is not always legally responsible for its contractors. Sometimes harm is caused by a contractor who's doing work for the government, but is not a government employee. In a case like this, a court will look at how much the contractor's relationship to the government represents an employer-employee relationship.

For example, if a contractor has a full-time position and is supervised by a state employee, they're more likely to be treated as an employee. A contractor who works independently, and has other clients besides the government, probably won't be treated as a government employee. If you have questions about whether the person who harmed you can be treated as a government employee, you should consider speaking with an attorney.

(N.Y. Ct. Cl. Act § 9(2) (2024); Snyder v. State, 70 Misc. 3d 801 N.Y. Ct. Cl. 2020).)

How Do You File a Personal Injury Claim Against the State of New York?

As we discussed above, it's easier to sue the government in New York than in most states. But New York still has special rules for personal injury lawsuits against the government. You must understand these rules if you want your claim to succeed.

Know Your Legal Options and Obligations

Keep three things in mind if you're considering suing the government in New York state:

• You will probably benefit from consulting an attorney. Any lawsuit can be complicated, but suing the government can be particularly tricky. These cases can raise difficult legal issues and involve different procedures than typical personal injury cases.
• The rules for suing the state are different from the rules for suing a local government. This section covers the basics of bringing a personal injury case against the state of New York (including state agencies). We'll talk at the end of this article about what to do if you want to sue a local government.
• You may have other legal options. A personal injury lawsuit against the government is not always the best way to seek financial compensation. And it is never the right approach if you think you're entitled to something other than money. We'll talk more below about other possible legal options.

How Do You Begin the Claims Process?

As we mentioned above, personal injury cases against the state of New York are heard by a special court called the Court of Claims. The process does not start until you:

• submit your claim paperwork to the Chief Clerk of the Court of Claims and
• make sure the state attorney general is served with a copy of your claim.

Depending on which agency caused your injuries, you may have to serve that agency with a copy of your claim, in addition to serving the state attorney general. You can read more about these rules on the Court of Claims' FAQ page.

How Much Time Do You Have to File Your Claim?

Just like with a typical lawsuit, there is a deadline for filing a case in the Court of Claims. If you miss the deadline, you will almost certainly lose your right to seek compensation for the harm you've suffered.

The Court of Claims has a 90-day filing deadline for injuries or property damage caused by negligence or by an intentional tort. This 90-day deadline is measured from the date of the incident.

If you need more time, you can file a Notice of Intention to File a Claim. Like the name implies, this just informs the court that you are planning to file a case, but aren't quite ready yet. You must file this Notice before the normal 90-day filing deadline expires. You can't ask for more time if you've already missed the deadline.

If a Notice of Intention to File a Claim is submitted in time, the new deadline is:

• one year from the date of the incident for an intentional tort claim, or
• two years from the date of the incident for a negligence claim.

You must file your Notice of Intention to File a Claim with the state attorney general. If your plan to bring a claim against a specific government agency (and not just the State of New York), you must also file your Notice of Intention with that agency.

(N.Y. Ct. Cl. Act § 10 (2024).)

What Information Must Be Included in Your Claim?

You begin a personal injury claim against the state government by filing paperwork with the This paperwork is called a Notice of Claim, and must include information like:

• your contact information
• the details of when, where and how you were harmed, and
• the amount of compensation you're seeking.

You must include most of the same information if you file a Notice of Intention to File a Claim. However, a Notice of Intention does not have to list the amount of compensation you're seeking or the specific injuries and property damage you suffered.

(N.Y. Ct. Cl. Act § 11(b) (2024).)

What Happens Once You've Filed a Claim Against the State?

The rules for cases in New York's Court of Claims are similar to the rules for other personal injury lawsuits. But there are important differences. An attorney can help you understand the process and make your best case.

Where your case will be heard. Your case will usually be assigned to a courthouse in the county where you were harmed. If that location is inconvenient for witnesses, or would cause other problems for your case, the court might grant a request to move the trial to a different county. (Liere v. State, 123 A.D.3d 1323 (N.Y. App. Div. 2014).)

The government's right to question you. In any civil lawsuit, the two sides have the right to ask each other questions under oath before the trial. But state law makes it easier for the New York government than it is for other parties. The state (or the agency you named in your claim) can require you, on five days' notice, to answer questions under oath about the details of your claim. (N.Y. Ct. Cl. Act § 17(1) (2024).)

Settling a claim. Just like with a typical personal injury lawsuit, the two sides in a Court of Claims case can agree to a settlement. This means that you accept a payment from the government, and in exchange you give up your claim and agree not file another one over the same incident. (N.Y. Ct. Cl. Act § 20-a (2024).)

What happens if the court rules against you. If your claim against the state of New York is rejected in court, it will bar you from bringing another claim or lawsuit against the state for the same incident. However, just like in a typical personal injury case, you have the right to appeal if you disagree with the trial court's decision. (N.Y. Ct. Cl. Act § 20(4) (2024); N.Y. Ct. Cl. Act § 24) (2024).)

You can read the rules for cases in the Court of Claims on the New York court system's website.

What If a Tort Claim Against the State Isn't Your Best Option?

As we mentioned above, a personal injury claim against the state of New York is only appropriate in certain situations. You must be able to prove that:

• you were harmed by the carelessness or intentional act of a government agency or employee, and
• that the state of New York is financially responsible for your injuries or property damage.

In addition, the Court of Claims can award financial compensation to claimants who prove their case, but cannot provide other kinds of legal help.

However, you may have legal options that you can pursue instead of (or in addition to) filing a tort case in the Court of Claims. We'll give you an overview of those options in this section.

Filing a Personal Injury Case Against Someone Other Than the Government

Sometimes you may have a good personal injury case, but the state of New York is not the right defendant to sue.

Suing for violations of your federal constitutional rights. As we discussed above, New York law allows citizens to seek financial compensation in the Court of Claims for certain violations of their rights under the state constitution. But if your rights under the United States Constitution were violated, things work differently. You wouldn't sue the state (or a state agency) in the Court of Claims. Instead, you would sue the individual employees who harmed you. That case would be heard in New York trial court.

Suing a government employee when the government isn't liable. You can't sue the government if you were hurt by an off-duty government employee and the accident had nothing to do with their job. And in the Court of Claims the defendant must be the government or a government agency, not an individual. But you can sue the person who harmed you by filing a personal injury case in New York trial court. Any damages you receive will be from that individual—the government isn't legally responsible at all.

Choosing whether to sue the government or a private party. Sometimes both an individual (or private organization) and the state can be liable for the same incident. This is similar to how things work in ordinary personal injury cases, where liability can be shared by an employee (who directly caused the accident) and the employer (who was responsible for the employee's conduct). So, in some cases, you might be able to choose between:

• filing a personal injury lawsuit against a government employee or a private organization, or
• bringing a case against the government in the Court of Claims.

Which choice makes more sense will depend on the facts of your case. Advice from an attorney with experience handling these kinds of lawsuits can help you decide on your best way forwad.

(Morell v. Balasubramanian, 70 N.Y.2d 297 (N.Y. 1987).)

Filing a Case That Isn't a Personal Injury Lawsuit

As we've discussed, New York makes it easier than many states to file a personal injury lawsuit in situations where you'd be able to sue a private party for doing the same thing. But not every harmful government action is a tort--it's common for people to feel they've been treated unfairly even when the government is doing something it's technically allowed to do. For example, the government could deny you a permit, or fire you from a government job.

It's difficult to challenge these kinds of decisions. State law and New York's courts give the government and its employees significant freedom to do their everyday work without having to worry about being sued. But it's sometimes possible to:

• get a government agency to reverse its decision
• get a court to overrule a government decision, or
• get a court to order the government to stop doing something.

You can do this by pursuing a so-called Article 78 proceeding. These proceedings have different rules from cases in the Court of Claims. For example:

• You can't go straight to court. You must first go through a process where you ask the agency to reconsider a decision you don't like. Once that process is complete, you can file a case in New York's trial court (not the Court of Claims).
• Courts will not overturn a government decision just because they disagree with it. You must be able to show, for example, that the agency violated its own rules, failed to follow state law, or made a terrible decision that no reasonable person could agree with. (N.Y C.P.L.R. § 7803 (2024).)
• You aren't asking for money damages in an Article 78 case. You're just trying to get the agency to do what it should have done in the first place. So, for example, if a permit was improperly denied, a successful Article 78 case would result in the permit being granted. (N.Y. C.P.L.R. § 7806 (2024).)

Just like with a case in the Court of Claims, you'll benefit from working with an attorney in an Article 78 proceeding.

Bringing A Claim Against a Local Government

Many of the rules and procedures we've discussed also apply to tort cases against local governments and their employees. But there are important differences. For example, you can't go straight to court. First you have to file a claim with the local government and complete that process.

The municipal tort claims process is similar across New York State, but make sure you know the local rules. Local governments often provide this information online. For example, the New York City Comptroller's site explains how to file a personal injury case against the city. Wherever you want to file your claim, an attorney can help you understand the process and decide what to do.

Get Help With Your New York Government Injury Claim

An attorney can be helpful in any personal injury case, but that's especially true if you've been harmed by a government agency or employee. The rules and procedures for bringing a claim against the government can be complicated. So, you'll benefit from speaking with a lawyer who can help you understand your options and decide on the best way to proceed.