| Sanchez v City of New York |
| 2011 NY Slip Op 06225 [87 AD3d 576] |
| August 9, 2011 |
| Appellate Division, Second Department |
| Gladys Sanchez, Respondent, v City of New York et al.,Appellants, et al., Defendants. |
—[*1] Kaplan & Kaplan, Brooklyn, N.Y. (Cary H. Kaplan of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants City of New York andthe Police Department of the City of New York appeal from an order of the Supreme Court,Kings County (Velasquez, J.), dated May 20, 2010, which granted the plaintiff's motion pursuantto General Municipal Law § 50-e (6) for leave to serve an amended notice of claim anddenied their cross motion for summary judgment dismissing the complaint insofar as assertedagainst them on the ground that the notice of claim was not timely filed.
Ordered that the order is affirmed, with costs.
General Municipal Law § 50-e (6) authorizes a court, in its discretion, to grant leave toserve an amended notice of claim where the error in the original notice was made in good faithand where the other party has not been prejudiced thereby. Here, there is no indication that thetypographical error in setting forth the accident date in the original notice of claim was made inbad faith. Moreover, the appellants did not demonstrate any actual prejudice as a result of theerror, and the record discloses no basis to presume the existence of prejudice. Furthermore,contrary to the appellants' contention, a claimant is not precluded from seeking relief pursuant toGeneral Municipal Law § 50-e (6) because an error in setting forth the accident date in theoriginal notice of claim makes it appear that the notice of claim was served beyond the 90-daystatutory period (see Matter of Puzio vCity of New York, 24 AD3d 679 [2005]; Matter of Berko v City of New York,302 AD2d 594, 595 [2003]; Perry v City of New York, 246 AD2d 380, 381 [1998]; cf. Elliot v County of Nassau, 53 AD3d561, 562-563 [2008]). Accordingly, the Supreme Court providently exercised its discretionin granting the plaintiff's motion for leave to serve an amended notice of claim and properlydenied the appellants' cross motion for summary judgment dismissing the complaint insofar asasserted against them based upon the plaintiff's alleged failure to serve a timely notice of claim(see Ritchie v Felix Assoc., LLC, 60AD3d 402 [2009]; Gatewood vPoughkeepsie Hous. Auth., 28 AD3d 515 [2006]; Matter of Puzio v City of New York, 24 AD3d 679 [2005]; Linv City of New York, 305 AD2d 553, 554 [2003]; Matter of Berko v City of NewYork, 302 AD2d at 595; Rosetti v City of Yonkers, 288 AD2d 287, 288 [2001];Formanek v New York City Hous. Auth., 197 AD2d 664 [1993]; Zinnamon v City ofNew York, 197 AD2d 618 [1993]). Dillon, J.P., Eng, Sgroi and Miller, JJ., concur.