NIEVES v. CITY OF NEW YORK (1999)

Order, Supreme Court, Bronx County (Douglas McKeon, J.), entered September 29, 1997, which, inter alia, granted defendants' cross motion to dismiss plaintiffs' complaint for failure to comply with General Municipal Law § 50-e(2) and denied plaintiffs' cross motion to amend their notice of claim and summons and complaint, unanimously affirmed, without costs.

The IAS court properly denied plaintiffs' cross motion to amend their notice of claim and complaint to reflect the proper location of the public school in which the infant plaintiff was assaulted, since the defect in the original notice caused defendants to conduct an investigation at the wrong site (see, Konsker v. City of New York, 172 A.D.2d 361, 568 N.Y.S.2d 620, lv. denied 78 N.Y.2d 858, 575 N.Y.S.2d 454, 580 N.E.2d 1057).   Plaintiffs' claims of difficulty with English and confusion over the number of the school do not excuse their failure to move to amend their notice of claim more expeditiously, particularly since plaintiffs' counsel had notice that the infant plaintiff may not have attended the school designated in the original notice of claim as the site of the assault (see, Rivera v. New York City Hous. Auth., 235 A.D.2d 296, 652 N.Y.S.2d 287).   Finally, defendants did not, notwithstanding the defective notice of claim, have actual knowledge of the event complained of within a reasonable time, since there is no evidence that an accident report was ever prepared, and plaintiffs failed to identify the school officials who allegedly reported the incident to the infant plaintiff's mother.

MEMORANDUM DECISION.