CHARLESTON v. INCORPORATED VILLAGE OF CEDARHURST (2009)

In an action to recover damages for personal injuries, the defendant Incorporated Village of Cedarhurst appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Woodard, J.), dated June 24, 2008, as granted that branch of the plaintiff's motion which was pursuant to General Municipal Law § 50-e(6) for leave to amend the notice of claim and denied its cross motion to dismiss the complaint insofar as asserted against it on the ground that the notice of claim was defective.

ORDERED that the order is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, that branch of the plaintiff's motion which was for leave to amend the notice of claim is denied, and the cross motion of the defendant Incorporated Village of Cedarhurst to dismiss the complaint insofar as asserted against it is granted.

The original notice of claim in this case, involving an allegedly defective sidewalk condition, misidentified the actual location where the claim arose and, therefore, was inadequate to meet the statutory requirements applicable to notices of claim (see General Municipal Law § 50-e[2];  Sarkissian v. City of New York, 302 A.D.2d 583, 755 N.Y.S.2d 300;  Jones v. City of New York, 277 A.D.2d 286, 715 N.Y.S.2d 663;  Austin v. City of Yonkers, 243 A.D.2d 597, 663 N.Y.S.2d 270).   The original notice of claim misidentified the situs of the incident as 6 Cedarhurst Avenue, rather than the correct address, 78 Cedarhurst Avenue.   Furthermore, the photographs provided to the appellant's claim representative one month after service of the notice of claim failed to clarify the location of the incident (see Lauro v. County of Nassau, 6 A.D.3d 394, 395, 774 N.Y.S.2d 371;  Yankana v. City of New York, 246 A.D.2d 645, 646, 668 N.Y.S.2d 241;  Matter of Valle v. New York City Hous. Auth., 224 A.D.2d 433, 637 N.Y.S.2d 757).   Moreover, the subsequent complaint, amended complaint, bill of particulars, and even a supplemental bill of particulars served 11 months after the incident repeated the same mistake.   Given the transitory nature of sidewalk defects (see Caselli v. City of New York, 105 A.D.2d 251, 253, 483 N.Y.S.2d 401), the appellant was prejudiced by not being able to conduct a prompt and accurate investigation while the facts surrounding the incident were still fresh (see Marino v. Town of Oyster Bay, 9 A.D.3d 394, 781 N.Y.S.2d 358;  Sarkissian v. City of New York, 302 A.D.2d 583, 755 N.Y.S.2d 300;  Chechelnitskaya v. City of New York, 293 A.D.2d 700, 701, 741 N.Y.S.2d 123).   In addition, the plaintiff's 14-month delay in seeking leave to serve an amended notice of claim deprived the appellant of an opportunity to conduct a meaningful investigation (see Marino v. Town of Oyster Bay, 9 A.D.3d 394, 781 N.Y.S.2d 358;  Richard v. Town of Oyster Bay, 300 A.D.2d 561, 752 N.Y.S.2d 537;  Chechelnitskaya v. City of New York, 293 A.D.2d at 701, 741 N.Y.S.2d 123).   Accordingly, that branch of the plaintiff's motion which was for leave to amend the notice of claim should have been denied and the appellant's cross motion to dismiss the complaint insofar as asserted against it on the ground that the notice of claim was defective should have been granted.