BERFAS v. TOWN OF OYSTER BAY (2000)

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Nassau County (Burke, J.), dated September 8, 1999, which denied its motion for summary judgment dismissing the complaint and granted the plaintiffs' cross motion to dismiss the ninth affirmative defense.

ORDERED that the order is affirmed, with costs.

 The defendant contends that the plaintiffs' notice of claim failed to comply with General Municipal Law § 50-e(2) because it did not give a sufficient description of the location of the defect in question.   We disagree.   The requirement of General Municipal Law § 50-e(2) that a notice of claim set forth “the place where * * * the claim arose” is met when the notice describes the location with sufficient particularity to enable the defendant to locate the alleged defect, conduct a meaningful investigation, and assess the merits of the claim before conditions change and memories fade (see, Thomas v. Town of Oyster Bay, 190 A.D.2d 731, 593 N.Y.S.2d 82;  Miles v. City of New York, 173 A.D.2d 298, 569 N.Y.S.2d 691;  Caselli v. City of New York, 105 A.D.2d 251, 483 N.Y.S.2d 401).   Whether a notice of claim substantially complies with the requirements of General Municipal Law § 50-e(2) depends on the circumstances of each case (see, Schwartz v. City of New York, 250 N.Y. 332, 334, 165 N.E. 517).   Claims involving pothole defects require even greater particularity because of their transitory nature (see, Caselli v. City of New York, supra, at 253, 483 N.Y.S.2d 401).

Here, the notice of claim was adequate since it indicated, inter alia, the lane of travel of the alleged defect and the approximate distance of the alleged defect from a specified intersection, and was accompanied by photographs showing the defect in question (see, Herrera v. City of New York, 211 A.D.2d 759, 622 N.Y.S.2d 524;  cf., Caselli v. City of New York, supra).

MEMORANDUM BY THE COURT.