Opinion
No. 2021-09591 Index No. 612168/21
08-28-2024
Brian Behrens, et al., appellants, v. Town of Huntington, respondent.
Douglas M. Reda, Woodbury, NY, for appellants. Susan J. Coleman, Town Attorney, Huntington, NY (Milber Makris Plousadis & Seiden, LLP [Louis B. Imbroto], of counsel), for respondent.
Douglas M. Reda, Woodbury, NY, for appellants.
Susan J. Coleman, Town Attorney, Huntington, NY (Milber Makris Plousadis & Seiden, LLP [Louis B. Imbroto], of counsel), for respondent.
BETSY BARROS, J.P. JOSEPH J. MALTESE PAUL WOOTEN LAURENCE L. LOVE, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiffs appeal from a judgment of the Supreme Court, Suffolk County (Joseph A. Santorelli, J.), entered November 26, 2021. The judgment, upon an order of the same court dated November 24, 2021, granting the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint, is in favor of the defendant and against the plaintiffs dismissing the complaint.
ORDERED that the judgment is affirmed, with costs.
The plaintiffs allegedly were injured when, at different times during the morning of July 25, 2020, they slipped and fell on a gangway ramp leading down to a floating dock at a marina owned, operated, and/or maintained by the defendant, Town of Huntington. In September 2020, the plaintiffs served separate but nearly identical notices of claim upon the Town, alleging that the location of the subject accidents was "on the gangway to the docks behind the Halesite Fire Department leading down to the floating docks," that they each were injured when they separately "slipped and fell on the gangway," and that they each sustained "serious and severe personal injuries... as a result of the carelessness, recklessness and negligence" of the Town. On January 19, 2021, the plaintiffs testified at a hearing pursuant to General Municipal Law § 50-h. Thereafter, the plaintiffs commenced this personal injury action against the Town, alleging in the complaint, among other things, that they were "caused to fall to the ground as a result of defect and/or water or other substance on the gangway leading down to the floating docks behind the Halesite Fire Department." The Town moved pursuant to CPLR 3211(a) to dismiss the complaint on the ground, inter alia, that the notices of claim did not comply with the statutory requirements of General Municipal Law § 50-e(2). In an order dated November 24, 2021, the Supreme Court granted the Town's motion, and a judgment entered November 26, 2021, upon the order dismissed the complaint. The plaintiffs appeal.
"To enable authorities to investigate, collect evidence and evaluate the merit of a claim, persons seeking to recover in tort against a municipality are required, as a precondition to suit, to serve a Notice of Claim" within 90 days after the claim arises (Washington v City of New York, 190 A.D.3d 1009, 1010 [internal quotation marks omitted]; see General Municipal Law § 50-e[1][a]; Brown v City of New York, 95 N.Y.2d 389, 392; Burgos v City of New York, 202 A.D.3d 744, 745). Pursuant to General Municipal Law § 50-e(2), "[a] notice of claim must set forth, inter alia, the nature of the claim, and the time, place, and manner in which the claim arose" (Congero v City of Glen Cove, 193 A.D.3d 679, 680 [internal quotation marks omitted]; see Lipani v Hiawatha Elementary Sch., 153 A.D.3d 1247, 1248). The test of the sufficiency of a notice of claim is whether it includes information sufficient to enable the public entity to "'locate the place, fix the time, and understand the nature of the accident'" (Puello v New York City Hous. Auth., 150 A.D.3d 1164, 1164, quoting Canelos v City of New York, 37 A.D.3d 637, 638; see Palmer v Society for Seamen's Children, 88 A.D.3d 970, 971). "Claims of roadway, sidewalk, or similar defects must be set forth with great specificity because of their transitory nature" (A.A. v City of New York, 219 A.D.3d 1473, 1474; see Burgos v City of New York, 202 A.D.3d at 745-746). "Whether the notice of claim substantially complies with the requirements of the statute depends on the circumstances of each case" (Vallejo-Bayas v New York City Tr. Auth., 103 A.D.3d 881, 882 [internal quotation marks omitted]; see Burgos v City of New York, 202 A.D.3d at 746; Kim L. v Port Jervis City School Dist., 40 A.D.3d 1042, 1044). "A court determining a motion to dismiss a complaint on the ground that the notice of claim is insufficient, in addition to examining the four corners of the notice of claim, may consider the testimony provided during an examination pursuant to General Municipal Law § 50-h, as well as any other evidence properly before the court" (Burgos v City of New York, 202 A.D.3d at 746; see General Municipal Law § 50-e[6]; D'Alessandro v New York City Tr. Auth., 83 N.Y.2d 891, 893; Davis v City of New York, 153 A.D.3d 658, 660). "However, this evidence 'cannot be used to substantively change the nature of the claim or the theory of liability,' since 'causes of action or legal theories may not be raised in the complaint [or in a bill of particulars] that were not directly or indirectly mentioned in the notice of claim and that change the nature of the claim or assert a new one'" (Mosley v City of New York, 217 A.D.3d 857, 859, quoting Washington v City of New York, 190 A.D.3d at 1011; see Levy v Incorporated Vil. of E. Hampton, 193 A.D.3d 714, 714-715).
Here, the notices of claim failed to comply with the statutory specificity requirements of General Municipal Law § 50-e(2) because they did not sufficiently describe the location and cause of the subject accidents. The additional information offered by the plaintiffs in their General Municipal Law § 50-h hearing testimony failed to cure the deficiencies of the notices of claim regarding the location and cause of the accidents, and continued to hinder the Town's ability to conduct a prompt and meaningful investigation of the claims (see A.A. v City of New York, 219 A.D.3d at 1475; Burgos v City of New York, 202 A.D.3d at 746; cf. Delisser v New York City Tr. Auth., 211 A.D.3d 907).
Accordingly, the Supreme Court properly granted the Town's motion pursuant to CPLR 3211(a) to dismiss the complaint on the ground that the notices of claim did not comply with General Municipal Law § 50-e(2).
Further, the Town established that it did not have prior written notice of any defect (see Code of Town of Huntington § 174-3[A]; Gorman v Town of Huntington, 12 N.Y.3d 275; Smith v City of New York, 210 A.D.3d 53, 61).
In light of our determination, we need not reach the parties' remaining contentions.
BARROS, J.P., MALTESE, WOOTEN and LOVE, JJ., concur.