| Ming v City of New York |
| 2008 NY Slip Op 07223 [54 AD3d 1011] |
| September 30, 2008 |
| Appellate Division, Second Department |
| Leslie Ming, Respondent, v City of New York et al.,Appellants. (And a Third-Party Action.) |
—[*1] Weil & Kestenbaum, Bayside, N.Y. (Alan C. Kestenbaum of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from so much ofan order of the Supreme Court, Queens County (Kerrigan, J.), dated July 30, 2007, as granted theplaintiff's motion for leave to amend his notice of claim, and denied their cross motion forsummary judgment dismissing the complaint for failure to comply with General Municipal Law§ 50-e.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff alleges that he was injured when his car struck a Consolidated Edison accessport that was higher than the roadway, which had been milled in preparation for repaving. Thedefendants met their burden of establishing that the plaintiff's notice of claim did notsubstantially comply with the requirements of General Municipal Law § 50-e (2) in that itfailed to correctly identify the accident location (see Streletskaya v New York City Tr. Auth., 27 AD3d 640 [2006];Ingle v New York City Tr. Auth., 7AD3d 574, 575 [2004]). However, a court may, in its discretion, allow a mistake,irregularity, or defect in a notice of claim to be corrected as long as that mistake, irregularity, ordefect was made in good faith and the public corporation was not prejudiced thereby (seeGeneral Municipal Law § 50-e [6]; D'Alessandro v New York City Tr. Auth.,83 NY2d 891, 893 [1994]). The defendants herein do not claim that the plaintiff's mistakenidentification in his notice of claim with respect to the block where the accident occurred wasmade in bad faith, and the record [*2]does not support either thedefendants' contention that they would be prejudiced by the proposed amendment or apresumption of the existence of prejudice (see Streletskaya v New York City Tr. Auth., 27 AD3d 640 [2006];Matter of Puzio v City of New York,24 AD3d 679 [2005]; Lin v City of New York, 305 AD2d 553 [2003];Matter of Barrios v City of New York, 300 AD2d 480 [2002]; Rosetti v City ofYonkers, 288 AD2d 287 [2001]; Santiago v County of Suffolk, 280 AD2d 594[2001]). Accordingly, the Supreme Court did not improvidently exercise its discretion in grantingthe plaintiff's motion for leave to amend his notice of claim pursuant to General Municipal Law§ 50-e (6) and denying the defendants' cross motion for summary judgment dismissing thecomplaint. Fisher, J.P., Balkin, McCarthy and Chambers, JJ., concur.