| Vallejo-Bayas v New York City Tr. Auth. |
| 2013 NY Slip Op 01260 [103 AD3d 881] |
| February 27, 2013 |
| Appellate Division, Second Department |
| Mauricio Vallejo-Bayas, Respondent, v New YorkCity Transit Authority, Appellant. |
—[*1] Mallilo & Grossman, Flushing, N.Y. (Francesco Pomara, Jr., of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from anorder of the Supreme Court, Queens County (Gavrin, J.), entered January 18, 2012,which denied its motion pursuant to CPLR 3211 (a) to dismiss the complaint or, in thealternative, for summary judgment dismissing the complaint, on the ground that theplaintiff's notice of claim failed to comply with General Municipal Law § 50-e (2),and granted the plaintiff's cross motion for leave to amend his notice of claim.
Ordered that the order is affirmed, with costs.
A notice of claim must state "the time when, the place where and the manner inwhich the claim arose" (General Municipal Law § 50-e [2]; see Brown v Cityof New York, 95 NY2d 389, 393 [2000]). The purpose of the statutory notice ofclaim requirement is to afford the public corporation an adequate opportunity toinvestigate the circumstances surrounding the accident and to explore the merits of theclaim while information is still readily available (see Teresta v City of New York,304 NY 440, 443 [1952]; Palmer v Society for Seamen's Children, 88 AD3d 970,971 [2011]). "[I]n determining compliance with the requirements of General MunicipalLaw § 50-e, courts should focus on the purpose served by a Notice of Claim:whether based on the claimant's description [the public corporation] can locate the place,fix the time and understand the nature of the accident" (Brown v City of NewYork, 95 NY2d at 393). "The requirements of the statute are met when the noticedescribes the accident with sufficient particularity so as to enable the defendant toconduct a proper investigation thereof and to assess the merits of the claim" (Palmerv Society for Seamen's Children, 88 AD3d at 971; see Rosenbaum v City of NewYork, 8 NY3d 1, 10 [2006]). "Whether the notice of claim substantiallycomplies with the requirements of the statute depends on the circumstances of each case"(Ingle v New York City Tr.Auth., 7 AD3d 574, 575 [2004]; see Schwartz v City of New York, 250NY 332, 335 [1929]; Cyprien v New York City Tr. Auth., 243 AD2d 673, 674[1997]; Levine v City of New York, 111 AD2d 785, 786 [1985]).
"A court may, in its discretion, grant an application for leave to amend a notice ofclaim where [a] mistake, omission, irregularity, or defect in the original notice was madein good faith, and it appears that the public corporation was not prejudiced thereby" (Roberson v New York City Hous.Auth., 89 AD3d 714, 715 [2011]; see General Municipal Law §50-e [6]). Accordingly, in making a determination on the sufficiency of a notice of claim,a court's inquiry is not limited to the [*2]four corners ofthe notice of claim, and it may consider the testimony provided during an examinationconducted pursuant to General Municipal Law § 50-h and any other evidenceproperly before the court (see D'Alessandro v New York City Tr. Auth., 83NY2d 891, 893 [1994]; Luke vMetropolitan Transp. Auth., 82 AD3d 1055, 1056 [2011]; Power v Manhattan & BronxSurface Operating Auth., 16 AD3d 655, 655-656 [2005]).
Here, the plaintiff's notice of claim alleged that he was injured when a bus ownedand operated by the defendant New York City Transit Authority (hereinafter the TransitAuthority) struck a hanging wire which caused the wire to strike the plaintiff as he stoodin front of his residence. The plaintiff's notice of claim provided the exact date, location,and nature of the alleged incident. Although the notice of claim incorrectly stated that theincident occurred at approximately 2:00 p.m. rather than at 1:15 p.m., the record does notdisclose that this error was a result of bad faith on the part of the plaintiff, or that theTransit Authority suffered any prejudice as a result of the error (see Delaney v Town of Islip,63 AD3d 658, 660 [2009]; Kim L. v Port Jervis City School Dist., 40 AD3d 1042,1044-1045 [2007]; Power v Manhattan & Bronx Surface Operating Auth., 16AD3d at 656). Furthermore, although the plaintiff was not able to identify the bus withgreater particularity, under the circumstances, the information contained in the notice ofclaim, supplemented by the testimony of the plaintiff given at the General MunicipalLaw § 50-h hearing, was sufficient to allow the Transit Authority to conduct ameaningful investigation into the plaintiff's claim (see Luke v Metropolitan Transp.Auth., 82 AD3d at 1056; Hudson v New York City Tr. Auth., 19 AD3d 648, 649[2005]; Malcolm v City of NewYork, 2 AD3d 696, 697 [2003]). Accordingly, the Supreme Court properlydenied the Transit Authority's motion pursuant to CPLR 3211 (a) to dismiss thecomplaint or, in the alternative, for summary judgment dismissing the complaint, on theground that the plaintiff's notice of claim failed to comply with General Municipal Law§ 50-e (2), and providently exercised its discretion in granting the plaintiff's crossmotion for leave to amend his notice of claim. Eng, P.J., Rivera, Lott and Miller, JJ.,concur.