SANTIAGO v. COUNTY OF SUFFOLK

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

Mario SANTIAGO, et al., Appellants, v. COUNTY OF SUFFOLK, et al., Respondents, et al., Defendants.

Decided: February 20, 2001

LAWRENCE J. BRACKEN, ACTING P.J., SONDRA MILLER, LEO F. McGINITY and ROBERT W. SCHMIDT, JJ. Donner, Hariton & Berka, LLP, Bayshore, N.Y. (Breakstone Law Firm [Jay L.T. Breakstone] of counsel), for appellants. Robert J. Cimino, County Attorney, Hauppauge, N.Y. (John D. Aspland of counsel), for respondent County of Suffolk.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Emerson, J.), dated April 10, 2000, which denied their motion for leave to serve an amended notice of claim on the defendant County of Suffolk and for leave to serve an amended complaint on the defendants County of Suffolk and Carol Konner.

ORDERED that the order is reversed, on the law and as a matter of discretion, with costs, the motion is granted, and the amended notice of claim and the amended complaint which were attached to the motion are deemed served;  and it is further,

ORDERED that the respondents' time to answer the amended complaint is enlarged until 20 days after service upon them of a copy of this decision and order with notice of entry.

The plaintiff Mario Santiago alleged that he was injured when the floor of certain premises allegedly owned by the defendant County of Suffolk collapsed underneath him.   In the notice of claim and the original complaint, the plaintiffs identified the premises as 165 Mill Road in Westhampton, instead of Westhampton Beach (hereinafter the premises).   Upon discovering the error, the plaintiffs moved to amend the notice of claim with respect to the County and the complaint with respect to the County and the defendant Carol Konner.

Pursuant to General Municipal Law § 50-e(6), “a mistake, omission, irregularity or defect made in good faith” in a notice of claim may be corrected in the court's discretion “provided it shall appear that the other party was not prejudiced thereby” (General Municipal Law § 50-e[6] ).   Since there is no allegation of bad faith on the part of the plaintiffs, the only issue is whether the County can show that it would be prejudiced by the amendment (see, Matter of Santarpia v. City of New York, 231 A.D.2d 726, 647 N.Y.S.2d 861).

 Prejudice will not be presumed (see, Evers v. City of New York, 90 A.D.2d 786, 787, 455 N.Y.S.2d 646).   The County's claim that it was thwarted in its investigation is belied by its failure to deny ownership of the premises in its answer.   Such failure constituted an admission of ownership (see, CPLR 3018[a];  Human Dev. Servs. of Port Chester v. Zoning Bd. of Appeals, 67 N.Y.2d 702, 705, 499 N.Y.S.2d 927, 490 N.E.2d 846;  Mooney v. PCM Dev. Co., 238 A.D.2d 487, 488, 656 N.Y.S.2d 655).   Moreover, it does not appear that the County ever undertook an investigation of the claim.   Accordingly, since there was no assertion that the error was made in bad faith and the County failed to demonstrate any actual prejudice, the plaintiffs should have been granted leave to serve an amended notice of claim (see, Calvoni v. City of N.Y., 280 A.D.2d 572, 720 N.Y.S.2d 796 [decided herewith];  Tucker v. Long Is. R.R. Co., 128 A.D.2d 517, 512 N.Y.S.2d 450;  Williams v. City of New York, 229 A.D.2d 114, 117, 654 N.Y.S.2d 775).

In the absence of any demonstrable prejudice to the respondents, it was an abuse of discretion to deny the plaintiffs leave to serve an amended complaint on the County and Konner (see, Tucker v. Long Is. R.R. Co., supra).

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