| Charleston v Incorporated Vil. of Cedarhurst |
| 2009 NY Slip Op 03686 [62 AD3d 641] |
| May 5, 2009 |
| Appellate Division, Second Department |
| Mindy Charleston, Respondent, v Incorporated Village ofCedarhurst, Appellant, et al., Defendants. |
—[*1] Wooster & Wooster, LLP, Garden City, N.Y. (Scott Wooster of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant Incorporated Village ofCedarhurst appeals, as limited by its brief, from so much of an order of the Supreme Court,Nassau County (Woodard, J.), dated June 24, 2008, as granted that branch of the plaintiff'smotion which was pursuant to General Municipal Law § 50-e (6) for leave to amend thenotice of claim and denied its cross motion to dismiss the complaint insofar as asserted against iton the ground that the notice of claim was defective.
Ordered that the order is reversed insofar as appealed from, on the facts and in the exerciseof discretion, with costs, that branch of the plaintiff's motion which was for leave to amend thenotice of claim is denied, and the cross motion of the defendant Incorporated Village ofCedarhurst to dismiss the complaint insofar as asserted against it is granted.
The original notice of claim in this case, involving an allegedly defective sidewalk condition,misidentified the actual location where the claim arose and, therefore, was inadequate to meetthe statutory requirements applicable to notices of claim (see General Municipal Law§ 50-e [2]; Sarkissian v City of New York, 302 AD2d 583 [2003]; Jones v Cityof New York, 277 AD2d 286 [2000]; Austin v City of Yonkers, 243 AD2d 597[1997]). The original notice of claim misidentified the situs of the incident as 6 CedarhurstAvenue, rather than the correct address, 78 Cedarhurst Avenue. Furthermore, the photographsprovided to the appellant's claim representative one month after service of the notice [*2]of claim failed to clarify the location of the incident (see Lauro v County of Nassau, 6AD3d 394, 395 [2004]; Yankana v City of New York, 246 AD2d 645, 646 [1998];Matter of Valle v New York City Hous. Auth., 224 AD2d 433 [1996]). Moreover, thesubsequent complaint, amended complaint, bill of particulars, and even a supplemental bill ofparticulars served 11 months after the incident repeated the same mistake. Given the transitorynature of sidewalk defects (see Caselli v City of New York, 105 AD2d 251, 253 [1984]),the appellant was prejudiced by not being able to conduct a prompt and accurate investigationwhile the facts surrounding the incident were still fresh (see Marino v Town of Oyster Bay, 9 AD3d 394 [2004];Sarkissian v City of New York, 302 AD2d 583 [2003]; Chechelnitskaya v City ofNew York, 293 AD2d 700, 701 [2002]). In addition, the plaintiff's 14-month delay inseeking leave to serve an amended notice of claim deprived the appellant of an opportunity toconduct a meaningful investigation (seeMarino v Town of Oyster Bay, 9 AD3d 394 [2004]; Richard v Town of OysterBay, 300 AD2d 561 [2002]; Chechelnitskaya v City of New York, 293 AD2d at701). Accordingly, that branch of the plaintiff's motion which was for leave to amend the noticeof claim should have been denied and the appellant's cross motion to dismiss the complaintinsofar as asserted against it on the ground that the notice of claim was defective should havebeen granted. Spolzino, J.P., Santucci, Angiolillo, Leventhal and Lott, JJ., concur.