| Copeland v City of New York |
| 2011 NY Slip Op 09081 [90 AD3d 691] |
| December 13, 2011 |
| Appellate Division, Second Department |
| Christine Copeland, Appellant, v City of New York,Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Alan G. Krams of counsel;Meredith E. Dempsey on the brief), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Velasquez, J.), dated September 27, 2010, which granted thedefendant's motion to dismiss the complaint on the ground that she failed to serve a timely noticeof claim and denied her cross motion for leave to amend her notice of claim.
Ordered that the order is reversed, on the law and in the exercise of discretion, with costs, thedefendant's motion to dismiss the complaint is denied, and the plaintiff's cross motion for leaveto amend her notice of claim is granted.
Pursuant to General Municipal Law § 50-e (6), a court has 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 (see Sanchez v City of New York, 87 AD3d 576 [2011]). Here,there is no indication that the typographical error regarding the date of the accident in the originalnotice of claim was made in bad faith, the defendant did not demonstrate any actual prejudice toit as a result of the error, and the record does not give rise to a presumption of the existence ofsuch prejudice. Further, a claimant who erroneously sets forth the date of the accident in theoriginal notice of claim such that it appears that the notice of claim was served beyond the 90-daystatutory period is not precluded from seeking relief pursuant to General Municipal Law §50-e (6) (see Sanchez v City of New York, 87 AD3d 576 [2011]; cf. Elliot v County of Nassau, 53 AD3d561, 562-563 [2008]).
Accordingly, the Supreme Court improvidently exercised its discretion in denying theplaintiff's cross motion for leave to serve an amended notice of claim and should have denied thedefendant's motion to dismiss the complaint based upon the plaintiff's alleged failure to serve atimely notice of claim (see Sanchez vCity of New York, 87 AD3d 576 [2011]; Ritchie v Felix Assoc., LLC, 60 AD3d 402 [2009]; Gatewood v Poughkeepsie Hous.Auth., 28 AD3d 515 [2006]; Matter of Puzio v City of New York, 24 AD3d 679 [2005]). Skelos,J.P., Angiolillo, Belen, Lott and Roman, JJ., concur.