HUSSEIN v. (and a third-party action). (1999)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Hutcherson, J.), dated December 8, 1997, which granted the defendants' motion to dismiss the complaint and failed to decide their application for Justice Hutcherson to recuse himself.   By decision and order of this court dated January 19, 1999, the appeal was held in abeyance and the appellants were directed to file a proper appendix (see, Hussein v. City of New York, 257 A.D.2d 605, 682 N.Y.S.2d 901).   The appellants have complied with that order.

ORDERED that the appeal from so much of the order as failed to decide the appellants' application for Justice Hutcherson to recuse himself is dismissed (see, Hill v. Andron Constr. Corp., 256 A.D.2d 549, 682 N.Y.S.2d 872;  Katz v. Katz, 68 A.D.2d 536, 418 N.Y.S.2d 99);  and it is further,

ORDERED that the order is affirmed insofar as reviewed;  and it is further,

ORDERED that the respondents are awarded one bill of costs.

 The Supreme Court properly granted the defendants' motion to dismiss the complaint on the ground that the notice of claim failed to describe the manner in which the accident occurred (see, Frazer v. New York City Hous. Auth., 198 A.D.2d 329, 603 N.Y.S.2d 177;  General Municipal Law § 50-e [2] ).   The plaintiffs' notice of claim and complaint, both served in 1993, and their bill of particulars dated February 17, 1994, attributed the cause of the accident to inadequate lighting, while the injured plaintiff's deposition testimony in January 1997 established that he was injured because an allegedly malfunctioning door slammed into him.

 The plaintiffs' request to amend their notice of claim and the complaint almost four years after the accident was properly denied, as the defendants were unable to conduct a meaningful investigation of the merits of the plaintiffs' claim (see, e.g., DiMenna v. Long Is. Light. Co., 209 A.D.2d 373, 618 N.Y.S.2d 425;  Moore v. New York City Tr. Auth., 189 A.D.2d 862, 592 N.Y.S.2d 774;  General Municipal Law § 50-e[6] ).

The plaintiffs' remaining contentions are without merit.

MEMORANDUM BY THE COURT.