| Avery v New York City Tr. Auth. |
| 2016 NY Slip Op 02770 [138 AD3d 770] |
| April 13, 2016 |
| Appellate Division, Second Department |
[*1](April 13, 2016)
| Alicia Avery, Appellant, v New York CityTransit Authority, Respondent. |
Morton Povman, P.C., Forest Hills, NY (Bruce Povman of counsel), forappellant.
Lawrence Heisler, Brooklyn, NY (Anna J. Ervolina of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Kings County (Jimenez-Salta, J.), dated January 23, 2015,which denied her motion for leave to serve an amended notice of claim.
Ordered that the order is reversed, on the facts and in the exercise of discretion, withcosts, and the plaintiff's motion for leave to serve an amended notice of claim isgranted.
On September 18, 2013, the plaintiff allegedly was injured when, after exiting a busoperated by the defendant, she stepped onto a broken and uneven portion of the roadwayand fell to the ground. On or about October 3, 2013, she served a notice of claim allegingthat she fell in "the vicinity of the bus stop located on Fulton Street near its intersectionwith Lafayette Avenue, Brooklyn, N.Y." On December 23, 2013, the plaintiff testified ata hearing held pursuant to General Municipal Law § 50-h that the accidenthappened when she got off of the B-25 bus by the Lafayette Avenue train station. In lateJanuary 2014, the plaintiff commenced this action alleging, in her verified complaint,that she was injured at the same location. In October 2014, the plaintiff moved for leaveto serve an amended notice of claim to reflect that "[t]he location of the occurrence wasthe vicinity of the B-25 bus stop and the Lafayette train station, located on Fulton Streetnear its intersection with Greene Avenue, Brooklyn, N.Y." The plaintiff asserted that thepurpose of the proposed amendment was to give a more detailed description of thelocation of her fall. The defendant opposed the motion, contending that the plaintiff wasacting in bad faith by attempting to change the accident location and that it would beprejudiced in its ability to conduct an investigation of the accident site if her motion weregranted. The Supreme Court denied the motion.
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]). "The purposeof the statutory notice of claim requirement is to afford the public corporation anadequate opportunity to investigate the circumstances surrounding the accident and toexplore the merits of the claim while information is still readily available" (Vallejo-Bayas v New York City Tr.Auth., 103 AD3d 881, 882 [2013]). " 'The requirements of the statuteare met when the notice describes the accident with sufficient particularity so as to enablethe defendant to conduct a proper investigation thereof and to assess the merits of theclaim' " (id. at 882, quoting Palmer v Society for Seamen's Children, 88 AD3d 970, 971[2011]). "[A] court may, in its discretion, allow a mistake, irregularity, or defect in anotice of claim [*2]to be corrected as long as thatmistake, irregularity, or defect was made in good faith and the public corporation was notprejudiced thereby" (Ming vCity of New York, 54 AD3d 1011, 1011-1012 [2008]; see GeneralMunicipal Law § 50-e [6]).
Here, the Supreme Court improvidently exercised its discretion in denying theplaintiff's motion for leave to serve an amended notice of claim. Contrary to thedefendant's contention, there is nothing in the record to suggest that the plaintiff acted inbad faith or attempted to change the location of her fall. In fact, the plaintiff gave aconsistent description of the location of her fall in her notice of claim, in her testimony atthe hearing held pursuant to General Municipal Law § 50-h, and in hercomplaint (cf. Bottini v City ofNew York, 78 AD3d 632 [2010]). When the plaintiff served the defendant witha notice of claim, she attached a photograph of the subject intersection. When shesubsequently moved for leave to amend the notice of claim, she attached additionalphotographs which, contrary to the defendant's contention, depicted the same intersectionviewed from different angles. Thus, any inconsistency between the original descriptionof the location of the plaintiff's fall and the description provided in the amended notice ofclaim did not prejudice the defendant. Given the information provided by the plaintiff inher notice of claim and in her testimony at the hearing held pursuant to GeneralMunicipal Law § 50-h, the defendant could have ascertained the location ofthe accident with a modicum of effort (see Hernandez v City of Yonkers, 74 AD3d 1025[2010]).
Accordingly, the Supreme Court should have granted the plaintiff's motion for leaveto serve an amended notice of claim. Mastro, J.P., Dillon, Hinds-Radix and Maltese, JJ.,concur.