LAPENNA v. TOWN OF HEMPSTEAD (2026)

DECISION & ORDER

In an action, inter alia, to recover damages for negligence, the plaintiff appeals from (1) an order of the Supreme Court, Nassau County (Lisa A. Cairo, J.), dated October 9, 2024, and (2) an order of the same court dated January 27, 2025.  The order dated October 9, 2024, insofar as appealed from, granted that branch of the motion of the defendant Town of Hempstead which was pursuant to CPLR 3211(a) to dismiss so much of the complaint as alleged negligent emergency medical care insofar as asserted against it and denied the plaintiff's cross-motion for leave to amend his notice of claim.  The order dated January 27, 2025, denied the plaintiff's motion for leave to reargue his opposition to that branch of the prior motion of the defendant Town of Hempstead which was pursuant to CPLR 3211(a) to dismiss so much of the complaint as alleged negligent emergency medical care insofar as asserted against it and his prior cross-motion for leave to amend his notice of claim.

ORDERED that the appeal from the order dated January 27, 2025, is dismissed, as no appeal lies from an order denying reargument;  and it is further,

ORDERED that the order dated October 9, 2024, is affirmed insofar as appealed from;  and it is further,

ORDERED that one bill of costs is awarded to the defendant Town of Hempstead.

The plaintiff, Gregg LaPenna, served a timely notice of claim upon the defendant Town of Hempstead alleging that the Town's negligence led to the tragic death of the plaintiff's 10–year–old son Lazar LaPenna (hereinafter the decedent).  The notice of claim essentially alleged that the Town failed to house and maintain an automated external defibrillator and other legally required medical equipment at the baseball field where the decedent died.  The plaintiff commenced the instant action against the Town, among others, asserting causes of action alleging common-law negligence and negligent infliction of emotional distress.  In February 2024, the plaintiff served a supplemental bill of particulars, wherein he alleged that the Town was “also guilty of negligence with respect to their negligent emergency medical care to” the decedent, including the failure to “immediately use a Bag Valve Mask.”

Thereafter, the Town moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it on the ground that the notice of claim was insufficient.  The plaintiff opposed the Town's motion and cross-moved for leave to amend his notice of claim.  In an order dated October 9, 2024, the Supreme Court, inter alia, granted that branch of the Town's motion which was to dismiss so much of the complaint as alleged negligent emergency medical care insofar as asserted against it and denied the plaintiff's cross-motion.  The plaintiff subsequently moved for leave to reargue his opposition to that branch of the Town's prior motion which was to dismiss so much of the complaint as alleged negligent emergency medical care insofar as asserted against it and his prior cross-motion for leave to amend his notice of claim.  In an order dated January 27, 2025, the Supreme Court denied the plaintiff's motion.  The plaintiff appeals from both orders.

The appeal from the order dated January 27, 2025, must be dismissed, as no appeal lies from the denial of leave to reargue (see Bayview Loan Servicing, LLC v Kelly, 235 AD3d 939, 940;  Brilliantine v East Hampton Fuel Oil Corp., 221 AD3d 951, 952).

“To enable authorities to investigate, collect evidence and evaluate the merit of a claim, persons seeking to recover in tort against a municipality are required, as a precondition to suit, to serve a Notice of Claim” within 90 days after the claim arises (Washington v. City of New York, 190 AD3d 1009, 1010 [internal quotation marks omitted];  see General Municipal Law § 50–e[1][a];  Burgos v. City of New York, 202 AD3d 744, 745).  “Pursuant to General Municipal Law § 50–e(6), [a] notice of claim may be amended only to correct good faith and nonprejudicial technical mistakes, omissions, or defects, [but] not to substantively change the nature of the claim or the theory of liability” (Mitchell v. Jimenez, 233 AD3d 773, 774 [internal quotation marks omitted];  see Castillo v. Kings County Hosp. Ctr., 149 AD3d 896, 897).  “Amendments of a substantive nature are not within the purview of [the statute]” (Mitchell v. Jimenez, 233 AD3d at 774 [internal quotation marks omitted];  see Macareno v. New York City Tr. Auth., 206 AD3d 642, 643).

Here, the plaintiff's notice of claim made no allegations regarding the Town's negligence in providing emergency medical care to the decedent.  Therefore, the proposed amendment was not technical in nature but included a substantive change to the facts and added a new theory of liability (see Mitchell v. Jimenez, 233 AD3d at 773–775;  Macareno v. New York City Tr. Auth., 206 AD3d at 643–644).

Accordingly, the Supreme Court properly denied the plaintiff's cross-motion for leave to amend his notice of claim and, therefore, properly granted, on the ground of failure to comply with General Municipal Law § 50–e(2), that branch of the Town's motion which was pursuant to CPLR 3211(a) to dismiss so much of the complaint as alleged negligent emergency medical care insofar as asserted against it (see Sinclair v. City of New York, 242 AD3d 919, 922;  T.N. v. City of New York, 227 AD3d 815, 817).

The plaintiff's remaining contentions are without merit.

DILLON, J.P., DOWLING, LANDICINO and MCCORMACK, JJ., concur.