| Bowers v City of New York |
| 2017 NY Slip Op 01174 [147 AD3d 894] |
| February 15, 2017 |
| Appellate Division, Second Department |
[*1]
| Deborah Bowers, Respondent, v City of New York,Defendant, and New York City Transit Authority, Appellant. |
Lawrence Heisler, Brooklyn, NY (Timothy J. O'Shaughnessy of counsel), for appellant.
Douglas M. Colbert (Pollack, Pollack, Isaac & De Cicco, LLP, New York, NY [Brian J.Isaac], of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant New York City TransitAuthority appeals from an order of the Supreme Court, Queens County (Gavrin, J.), enteredDecember 28, 2015, which denied its motion to dismiss the complaint insofar as asserted againstit and granted the plaintiff's cross motion for leave to amend the notice of claim and thepleadings to reflect the correct date of the occurrence.
Ordered that the order is affirmed, with costs.
The plaintiff allegedly was injured when she slipped and fell while descending a stairway ofa subway station in Queens. On June 1, 2012, the plaintiff served a notice of claim upon thedefendant New York City Transit Authority (hereinafter the Transit Authority) alleging, interalia, that the accident occurred at approximately 11:00 p.m. on March 2, 2012. On June 26, 2012,the plaintiff testified at a hearing pursuant to General Municipal Law § 50-h. Theplaintiff commenced this action in late May 2013, and issue was joined in or around September2013. In her verified bill of particulars dated September 11, 2014, the plaintiff alleged that theaccident took place on March 2, 2012, at approximately 12:00 a.m. Thereafter, the TransitAuthority moved to dismiss the complaint insofar as asserted against it on the ground that thenotice of claim was not timely served pursuant to General Municipal Law § 50-eand Public Authorities Law § 1212 as it should have been served no later than May31, 2012, which was 90 days after the claim accrued. The plaintiff cross-moved, inter alia,pursuant to General Municipal Law § 50-e (6), for leave to amend the notice ofclaim and the pleadings to reflect that the correct date of the accident was March 3, 2012. Insupport of her cross motion, she submitted, inter alia, a police department aided report containinga March 3, 2012, date and a pre-hospital care report summary indicating that an ambulance wasdispatched shortly after midnight on the morning of March 3, 2012. The Supreme Court deniedthe Transit Authority's motion to dismiss and granted the plaintiff's cross motion.
A notice of claim must state "the time when, the place where and the manner in which theclaim arose" (General Municipal Law § 50-e [2]). Service of a notice of claimwithin 90 days after accrual of the claim is a condition precedent to the commencement of a tortaction against a municipality or a public benefit corporation such as the Transit Authority (seeGeneral Municipal Law § 50-e [1] [a]; Se Dae Yang v New York City Health & Hosps. Corp., 140 AD3d1051, 1052 [2016]). " 'The purpose of the statutory notice of claim requirement is toafford the public corporation an [*2]adequate opportunity toinvestigate the circumstances surrounding the accident and to explore the merits of the claimwhile information is still readily available' " (Avery v New York City Tr. Auth., 138 AD3d 770, 771 [2016],quoting Vallejo-Bayas v New York CityTr. Auth., 103 AD3d 881, 882 [2013]). " 'General Municipal Law§ 50-e was not meant as a sword to cut down honest claims, but merely as a shieldto protect municipalities against spurious ones' " (Se Dae Yang v New York CityHealth & Hosps. Corp., 140 AD3d at 1052, quoting DeLeonibus v Scognamillo,183 AD2d 697, 698 [1992]). Thus, "a court may, in its discretion, allow a mistake, irregularity, ordefect in a notice of claim to be corrected as long as that mistake, irregularity, or defect wasmade in good faith and the public corporation was not prejudiced thereby" (Ming v City of New York, 54 AD3d1011, 1011-1012 [2008]; see General Municipal Law § 50-e [6]).
Here, mere minutes constituted the difference between whether the plaintiff's fall occurred onMarch 2, 2012, or March 3, 2012. Under these circumstances, the Supreme Court providentlyexercised its discretion in granting the plaintiff's cross motion for leave to amend the notice ofclaim and the pleadings to reflect March 3, 2012, as the correct date of the accident. There is noindication that the date originally set forth in the notice of claim as the accident date, March 2,2012, was set forth in bad faith, the Transit Authority did not demonstrate any actual prejudice asa result of the discrepancy, and the record discloses no basis to presume the existence ofprejudice (see General Municipal Law § 50-e [6]; CPLR 3025 [b]; Copeland v City of New York, 90AD3d 691 [2011]; Sanchez v Cityof New York, 87 AD3d 576 [2011]; Gatewood v Poughkeepsie Hous. Auth., 28 AD3d 515 [2006]; Matter of Puzio v City of New York,24 AD3d 679 [2005]; Zinnamon v City of New York, 197 AD2d 618 [1993];Formanek v New York City Hous. Auth., 197 AD2d 664 [1993]; cf. Matter of Newcomb v Middle CountryCent. Sch. Dist., 28 NY3d 455 [2016]). Accordingly, the court also properly denied theTransit Authority's motion to dismiss the complaint insofar as asserted against it (see Sanchezv City of New York, 87 AD3d at 577).
The Transit Authority's remaining contentions either have been rendered academic by ourdetermination or are improperly raised for the first time on appeal. Mastro, J.P., Dillon, Balkinand Maltese, JJ., concur.