R. S., etc., et al., appellants, v. CITY OF NEW YORK (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Kings County (Patria Frias–Colón, J.), dated November 21, 2023.  The order denied the plaintiffs' motion, inter alia, for leave to amend the notice of claim.

ORDERED that the order is affirmed, with costs.

On June 2, 2017, the infant plaintiff allegedly was injured while running in a park owned and operated by the defendant City of New York, located in Brooklyn, when she tripped, fell, and sustained injuries.  In a notice of claim, the infant plaintiff and her father, on her behalf, stated that the accident occurred on June 19, 2017.  In March 2018, the plaintiffs commenced the instant action against the defendants to recover damages for personal injuries the infant plaintiff allegedly sustained in the fall.  In the complaint, the plaintiffs alleged that the accident occurred on June 19, 2017.  The defendants interposed an answer denying the allegations.

In August 2022, the plaintiffs moved, inter alia, for leave to amend the notice of claim to correct the date of the accident.  The defendants opposed the motion.  In an order dated November 21, 2023, the Supreme Court denied the plaintiffs' motion.  The plaintiffs appeal.

“ ‘A timely and sufficient notice of claim is a condition precedent to asserting a tort claim against a municipality or public benefit corporation’ ” (Mitchell v. Jimenez, 233 A.D.3d 773, 774, 224 N.Y.S.3d 426, quoting Se Dae Yang v. New York City Health & Hosps. Corp., 140 A.D.3d 1051, 1052, 35 N.Y.S.3d 350;  see Matter of Johnson v. County of Suffolk, 167 A.D.3d 742, 743, 90 N.Y.S.3d 84).  “General Municipal Law § 50–e(2) requires that the notice of claim set forth, among other things ‘the time when, the place where and the manner in which the claim arose’ ” (T.N. v. City of New York, 227 A.D.3d 815, 816, 211 N.Y.S.3d 204, quoting Brown v. City of New York, 95 N.Y.2d 389, 393, 718 N.Y.S.2d 4, 740 N.E.2d 1078;  see Davis v. City of New York, 210 A.D.3d 865, 866, 178 N.Y.S.3d 194).  “Pursuant to General Municipal Law § 50–e(6), a court has discretion to grant leave to serve an amended notice of claim where the error in the original notice was made in good faith and where the other party has not been prejudiced thereby” (T.N. v. City of New York, 227 A.D.3d at 816–817, 211 N.Y.S.3d 204;  see Hernandez–Panell v. City of New York, 232 A.D.3d 859, 860, 223 N.Y.S.3d 158).  The plaintiff has the initial burden of establishing the absence of prejudice (see Garland v. City of New York, 237 A.D.3d 669, 670, 231 N.Y.S.3d 558;  Matter of St. Hilaire v. New York City Hous. Auth., 216 A.D.3d 645, 647, 189 N.Y.S.3d 215).

Here, the plaintiffs failed to meet their initial burden of demonstrating the absence of prejudice to the defendants arising from the plaintiffs' repeated errors regarding the date of the accident.  There was an unexplained delay in seeking leave to amend the notice of claim of approximately two-and-a-half years after the plaintiffs' counsel became aware of the correct date of the accident (see T.N. v. City of New York, 227 A.D.3d at 817, 211 N.Y.S.3d 204;  Matter of DiMattia v. City of New York, 183 A.D.3d 823, 824, 124 N.Y.S.3d 400;  Torres v. Town of Babylon, 123 A.D.3d 1007, 1008, 999 N.Y.S.2d 513).  Contrary to the plaintiffs' contentions, an occurrence report did not establish that the defendants had actual knowledge of the correct date of the accident, as the occurrence report did not give the defendants actual knowledge of the circumstances surrounding the infant plaintiff's alleged fall (see Y.P. v. City of New York, 230 A.D.3d 1332, 1333–1334, 220 N.Y.S.3d 75;  Matter of Almeida v. City of New York, 227 A.D.3d 890, 892, 211 N.Y.S.3d 481;  Matter of DiMattia v. City of New York, 183 A.D.3d at 824, 124 N.Y.S.3d 400).

Accordingly, the Supreme Court providently exercised its discretion in denying the plaintiffs' motion, among other things, for leave to amend the notice of claim.

BARROS, J.P., CHAMBERS, WARHIT and GOLIA, JJ., concur.