JEREMIAH v. CITY OF NEW YORK (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Gina Abadi, J.), dated September 4, 2024.  The order denied the plaintiff's motion pursuant to General Municipal Law § 50–e(6) for leave to amend the notice of claim and to deem the amended notice of claim timely served nunc pro tunc and granted the defendant's cross-motion pursuant to CPLR 3211(a)(7) to dismiss the complaint.

ORDERED that the order is affirmed, with costs.

On October 3, 2023, the plaintiff allegedly was injured when she stepped on an unsecured temporary sidewalk slab.  On October 10, 2023, the plaintiff served a notice of claim on the defendant, City of New York, in which she identified the location of the accident as “Kings County.”

In June 2024, the plaintiff commenced this action against the defendant to recover damages for personal injuries.  Thereafter, the plaintiff moved pursuant to General Municipal Law § 50–e(6) for leave to amend the notice of claim to identify the location of the accident as “the sidewalk of East 91st Street and Lenox Road in Kings County” and to deem the amended notice of claim timely served nunc pro tunc.  The defendant cross-moved pursuant to CPLR 3211(a)(7) to dismiss the complaint on the ground that the notice of claim did not comply with General Municipal Law § 50–e(2) as it did not sufficiently describe the location where the accident occurred.  In an order dated September 4, 2024, the Supreme Court denied the plaintiff's motion and granted the defendant's cross-motion.  The plaintiff appeals.

“ ‘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[n]otice of [c]laim’ ” (Sinclair v. City of New York, 242 A.D.3d 919, 920, 243 N.Y.S.3d 140, quoting T.N. v. City of New York, 227 A.D.3d 815, 816, 211 N.Y.S.3d 204).  General Municipal Law § 50–e(2) requires that the notice of claim set forth, among other things, “the nature of the claim” and “the time when, the place where and the manner in which the claim arose” (see Burgos v. City of New York, 202 A.D.3d 744, 745, 158 N.Y.S.3d 841).  “The test of the sufficiency of a notice of claim is whether it includes information sufficient to enable the public entity to ‘locate the place, fix the time, and understand the nature of the accident’ ” (A.A. v. City of New York, 219 A.D.3d 1473, 1474, 196 N.Y.S.3d 522 [internal quotation marks omitted], quoting Puello v. New York City Hous. Auth., 150 A.D.3d 1164, 1164, 55 N.Y.S.3d 355).  “ ‘Claims of roadway, sidewalk, or similar defects must be set forth with great specificity because of their transitory nature’ ” (Sinclair v. City of New York, 242 A.D.3d at 921, 243 N.Y.S.3d 140, quoting A.A. v. City of New York, 219 A.D.3d at 1474, 196 N.Y.S.3d 522).  “Whether the notice of claim substantially complies with the requirements of the statute depends on the circumstances of each case” (Sinclair v. City of New York, 242 A.D.3d at 921, 243 N.Y.S.3d 140 [internal quotation marks omitted] ).

“ ‘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’ ” (Garland v. City of New York, 237 A.D.3d 669, 670, 231 N.Y.S.3d 558, quoting T.N. v. City of New York, 227 A.D.3d at 816–817, 211 N.Y.S.3d 204;  see Davis v. City of New York, 210 A.D.3d 865, 866, 178 N.Y.S.3d 194).  “The plaintiff has the ‘initial burden of demonstrating the absence of prejudice’ ” (Garland v. City of New York, 237 A.D.3d at 670, 231 N.Y.S.3d 558, quoting Matter of St. Hilaire v. New York City Hous. Auth., 216 A.D.3d 645, 647, 189 N.Y.S.3d 215).

Here, the plaintiff failed to meet her initial burden of demonstrating that her failure to specify the location of the accident in the notice of claim did not prejudice the defendant's ability to conduct a prompt and meaningful investigation into the plaintiff's claim (see Sinclair v. City of New York, 242 A.D.3d at 921–922, 243 N.Y.S.3d 140;  T.N. v. City of New York, 227 A.D.3d at 817, 211 N.Y.S.3d 204;  Davis v. City of New York, 210 A.D.3d at 867, 178 N.Y.S.3d 194).  The record does not support the plaintiff's assertion that the notice of claim, which included a photograph of an unidentified portion of sidewalk, provided the defendant with sufficient information to allow for a proper investigation (see Sinclair v. City of New York, 242 A.D.3d at 922, 243 N.Y.S.3d 140;  Murtha v. Town of Huntington, 120 A.D.3d 480, 481–482, 991 N.Y.S.2d 98).  Moreover, contrary to the plaintiff's contention, this is not a case where the defendant could have timely ascertained the location of the accident with a “modicum of effort” (Garland v. City of New York, 237 A.D.3d at 671, 231 N.Y.S.3d 558).

Accordingly, the Supreme Court properly denied the plaintiff's motion pursuant to General Municipal Law § 50–e(6) for leave to amend her notice of claim and to deem the amended notice of claim timely served nunc pro tunc and granted the defendant's cross-motion pursuant to CPLR 3211(a)(7) to dismiss the complaint (see Sinclair v. City of New York, 242 A.D.3d at 922, 243 N.Y.S.3d 140;  T.N. v. City of New York, 227 A.D.3d at 817, 211 N.Y.S.3d 204).

The plaintiff's remaining contentions are without merit.

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