LOPEZ v. CITY OF NEW YORK

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

Maria LOPEZ, Appellant, v. CITY OF NEW YORK, Respondent.

Decided: October 29, 2001

CORNELIUS J. O'BRIEN, J.P., SONDRA MILLER, LEO F. McGINITY, ROBERT W. SCHMIDT and SANDRA L. TOWNES, JJ. Stillman & Stillman, LLP, Bronx, N.Y. (Matthew Sakkas of counsel), for appellant. Michael D. Hess, Corporation Counsel, New York, N.Y. (Kristin M. Helmers and Helen P. Brown of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Levine, J.), dated October 2, 2000, which denied her motion for leave to amend her notice of claim, and granted the defendant's cross motion to dismiss the complaint.

ORDERED that the order is affirmed, with costs.

 A court may, in its discretion, grant an application for leave to amend a notice of claim (see, General Municipal Law § 50-e[6] ) where the mistake, omission, irregularity, or defect in the original notice was made in good faith, and it appears that the public corporation is not prejudiced thereby (see, D'Alessandro v. New York City Tr. Auth., 83 N.Y.2d 891, 613 N.Y.S.2d 849, 636 N.E.2d 1382;  Cyprien v. New York City Tr. Auth., 243 A.D.2d 673, 664 N.Y.S.2d 574;  Flanagan v. County of Westchester, 238 A.D.2d 468, 657 N.Y.S.2d 59;  Carver v. Town of Riverhead, 231 A.D.2d 545, 647 N.Y.S.2d 33;  Zapata v. City of New York, 225 A.D.2d 543, 638 N.Y.S.2d 487).

 The description in the notice of claim was defective insofar as it stated that the accident occurred on the southwest corner of Main Street and Roosevelt Avenue in Queens instead of the northwest corner.   Within a month after receiving the notice of claim, an investigator from the City's Office of the Comptroller examined and photographed the incorrect site.   The defendant did not learn of the correct location of the accident until more than five years after the accident, when the plaintiff testified at her deposition.   Three years and five months after the deposition, and on the eve of trial, the plaintiff moved for leave to amend her notice of claim.

The Supreme Court providently exercised its discretion in denying the plaintiff's motion, as the defendant was prejudiced by the mistake in the notice.   Since sidewalk defects are transitory in nature, and the Comptroller's Office conducted an investigation at the incorrect location promptly after the accident, the plaintiff's motion for leave to amend the notice of claim, made over eight years after the claim arose, deprived the defendant of an opportunity to conduct a meaningful investigation while the facts surrounding this incident were still fresh (see, D'Alessandro v. New York City Tr. Auth., supra;  O'Brien v. City of Syracuse, 54 N.Y.2d 353, 358, 445 N.Y.S.2d 687, 429 N.E.2d 1158;  Zapata v. City of New York, supra;  Krug v. City of New York, 147 A.D.2d 449, 537 N.Y.S.2d 299;  Caselli v. City of New York, 105 A.D.2d 251, 253, 483 N.Y.S.2d 401).   Furthermore, the mere filing of a police officer's report, without more, did not provide a sufficient basis for imputing knowledge of the correct accident site to the defendant (see, Krug v. City of New York, supra;  Levine v. City of New York, 111 A.D.2d 785, 787, 490 N.Y.S.2d 533;  Caselli v. City of New York, supra, at 258, 483 N.Y.S.2d 401).