| McIntosh v Village of Freeport |
| 2012 NY Slip Op 03608 [95 AD3d 965] |
| May 8, 2012 |
| Appellate Division, Second Department |
| Antoinette McIntosh, an Incapacitated Person, by Her Guardian,Andrea Martin, et al., Respondents, v Village of Freeport, Appellant, et al., Defendants.(And a Third-Party Action.) |
—[*1] Spar & Bernstein, P.C. (Adam S. Handler and Pollack, Pollack, Isaac & De Cicco, NewYork, N.Y. [Brian J. Isaac], of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendant Village of Freeportappeals from an order of the Supreme Court, Nassau County (Palmieri, J.), entered December 10,2009, which granted the motion of the plaintiff Andrea Martin, as guardian of AntoinetteMcIntosh, an incapacitated person, for leave to amend the notice of claim to add a derivativecause of action to recover damages for loss of services on behalf of Andrea Martin, in herindividual capacity.
Ordered that the order is affirmed, with costs.
The Supreme Court properly granted the motion of the plaintiff Andrea Martin (hereinafterthe plaintiff), as guardian of Antoinette McIntosh, for leave to amend her notice of claim to asserta derivative cause of action to recover damages for loss of services on her own behalf. Theplaintiff sought leave to amend her notice of claim in order to address an omission (seeGeneral Municipal Law § 50-e [6]). The proposed amendment sought to add aderivative claim predicated upon the same facts which had already been included in the notice ofclaim and complaint. Therefore, the defendant Village of Freeport had been duly and timelynotified (see Burgarella v City of New York, 265 AD2d 361 [1999]). Under thecircumstances, since the Village did not suffer any prejudice, the plaintiff's motion for leave toamend the notice of claim was properly granted (id. at 362).
The Village's remaining contention is without merit. Florio, J.P., Hall, Austin and Cohen, JJ.,concur.