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Supreme Court, Appellate Division, First Department, New York.

Justin RIVERA, Plaintiff–Appellant, v. NEW YORK CITY HOUSING AUTHORITY, Defendant–Respondent.


Decided: April 24, 2018

Sweeny, J.P., Richter, Webber, Gesmer, Moulton, JJ. Burns & Harris, New York (Judith F. Stempler of counsel), for appellant. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York (Patrick J. Lawless of counsel), for respondent.

Order, Supreme Court, Bronx County (Barry Salman, J.), entered December 6, 2016, which granted defendant's motion for dismissal of the complaint, and denied plaintiff's cross motion for leave to serve an amended notice of claim and an amended complaint and bill of particulars, unanimously affirmed, without costs.

The action was properly dismissed, because plaintiff's inconsistency as to the accident location and failure to timely move to correct the amended notice of claim prejudiced defendant's ability to investigate the incident while the surrounding facts were still fresh (see Cruz v. City of New York, 138 A.D.3d 634, 28 N.Y.S.3d 870 [1st Dept. 2016];  Alvarez v. City of New York, 155 A.D.2d 373, 374, 548 N.Y.S.2d 5 [1st Dept. 1989] ).  Plaintiff provides no explanation why he waited over one year after receiving defendant's response to his combined demand stating that the accident location as set forth in the notice of claim and the amended notice did not exist (see Rivera v. New York City Hous. Auth., 235 A.D.2d 296, 652 N.Y.S.2d 287 [1st Dept. 1997] ).

Defendant established that it had been prejudiced by submitting evidence that its investigators attempted to locate the accident location from the description provided in the notice of claim and amended notice and were unable to do so (see Centeno v. City of New York, 224 A.D.2d 268, 637 N.Y.S.2d 415 [1st Dept. 1996], lv denied 88 N.Y.2d 804, 646 N.Y.S.2d 984, 670 N.E.2d 225 [1996];  Konsker v. City of New York, 172 A.D.2d 361, 362, 568 N.Y.S.2d 620 [1st Dept. 1991], lv denied 78 N.Y.2d 858, 575 N.Y.S.2d 454, 580 N.E.2d 1057 [1991] ).  Plaintiff failed to preserve the issue as to whether the motion court erred in considering the correspondence between defendant's counsel and its investigators, and we decline to review it (see Van Dina v. City of New York, 292 A.D.2d 267, 267, 740 N.Y.S.2d 15 [1st Dept. 2002] ).  The facts that plaintiff correctly provided the block and lot number for the property and consistently alleged that he fell on stairway F not require a different result, because that information is insufficient to dispel the confusion caused by the specification of an address that does not have the stairway as designated in the notice of claim and the amended notice (see Rivera v. City of New York, 303 A.D.2d 318, 757 N.Y.S.2d 273 [1st Dept. 2003] ).