Opinion
00 Civ. 4450 (SHS)
April 25, 2001
OPINION ORDER
Plaintiff Joseph Commarato has moved for an order granting permission to file an amended notice of claim against defendant City of New York pursuant to General Municipal Law 50-e(6) and to amend his complaint pursuant to Fed.R.Civ.P. 15 to change the incident location and add two defendants. The City of New York has cross-moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on the grounds that Commarato has failed to file a proper notice of claim and has thus failed to comply with a statutory precondition to suit. For the reasons set forth in this Opinion and Order, Commarato's motion is granted and the City's motion is denied.
I. Commarato's Motion for Leave to File an Amended Notice of Claim Pursuant to General Municipal Law § 50(e)(6) Is Granted.
Commarato originally filed his notice of claim on May 5, 2000, setting forth that he was injured by falling on a cracked and broken sidewalk and curb at "the South East corner of the intersection of 73 St. and Amsterdam Ave., " due to "the negligent construction and maintenance of the curb at the aforesaid location. The location was cracked, broken, and was covered with ice as well as being defective in various other ways." (Weitzman Aff., Exh. A.)
In Commarato's proposed amended notice of claim, filed on September 29, 2000 and rejected by the City of New York on October 6, 2000, Commarato specified the incident's location as "the sidewalk in front of 275 Amsterdam Avenue . . . on the western side of a grate." (Weitzman Aff., Exh. B.) On the photographs attached to his proposed amended notice of claim, Commarato marked an "x" on the western side of a grate on the sidewalk of Amsterdam Avenue, approximately fifteen to twenty feet from the corner of 73rd Street. (Weitzman Aff., Exh. B.) Commarato also added, in addition to the deficiencies set forth in the prior notice of complaint, that the curb was also uneven and raised. (Weitzman Aff., Exh. B.)
A notice of claim against the City must set forth, among other facts, "the nature of the claim" and "the place where and the manner in which the claim arose." Gen. Mun. § 50-e(2). "At any time after the service of a notice of claim . . . a mistake [or] omission . . . made in good faith in the notice of claim . . . may be corrected . . . in the discretion of the court, provided it shall appear that the other party was not prejudiced thereby." Gen. Mun. § 50-e(6). Commarato requests leave to amend his notice of claim, stating that he never reviewed the incident location with his counsel prior to filing the notice of claim because he retained his counsel only five days before the expiration of the filing period. Commarato states that his initial misidentification was made in good faith an(that he realized that the original notice was erroneous only after he reviewed photographs of the incident location. The Court will exercise its discretion to permit Commarato to amend his notice of claim because there is no evidence that Commarato's previous misidentification of the incident location was in bad faith, and there is no evidence that the City has been prejudiced.
Commarato's initial identification of the incident location as the sidewalk and curb at "the South East corner of the intersection of 73 So. and Amsterdam Ave." was reasonably precise and enabled the City to commence an investigation of the claim, if it had chosen to do so. The City admits that the original location was only "several feet away" from the actual one. (Def.'s Memo. in Opp. at 1.) In order for a notice of claim to be sufficient, it need only include "information sufficient to enable the city to investigate the claim." O'Brien v. City of Syracuse, 54 N.Y.2d 353, 358, 445 N.Y.S.2d 687, 429 N.E.2d 1158 (N.Y. 1981).
The Appellate Division, First Department has rejected the proposition that nothing less than the absolute exact placement of a sidewalk defect must be contained in the notice of claim. Instead, the notice to the municipality "must simply be with sufficient particularity to adequately advise it of the alleged defect which is the subject of the claim so as to enable it properly to investigate the matter while information is still fresh." Rivera v. City of New York, 169 A.D.2d 387, 389, 563 N.Y.S.2d 818, 820 (1st Dep't 1991) (citing O'Brien, 54 N.Y.2d 353, 445 N.Y.S.2d 687, 429 N.E.2d 1158); see also Cruz v. New York City Housing Authority, 261 A.D.2d 296, 691 N.Y.S.2d 397 (1st Dep't 1999). Commarato's initial notice of claim constituted sufficient information from which the City could promptly investigate the claim. The City, however, did not do so. (Def.'s Memo. in Opp. at 4.) The City's failure to investigate the incident location at any time after the initial notice was given on May 5, 2000 cannot be excused on the basis of any imprecision in the notice of claim. See Rivera, 169 A.D.2d at 390, 563 N.Y.S.2d at 820; see also Santarpia v. City of New York, 231 A.D.2d 726, 727, 647 N.Y.S.2d 861, 862 (2d Dep't 1996).
The City contends that Commarato's misidentification of the incident location at the hearing held pursuant to General Municipal Law § 50-h (the "50-h hearing") on August 17, 2000 also constitutes grounds to deny him leave to amend. Specifically, when asked by the assistant corporation counsel at the 50-h hearing to show exactly where the fall occurred, Commarato marked on six different photos that he fell on an uneven area of sidewalk directly on the corner, at the approximate center of the intersection of the east sidewalk of Amsterdam Avenue and the south sidewalk of West 73rd Street. (Davidow Aff. Exh. B at 13-20; Exh. C.) However, at his deposition, which took place six weeks after the 50-h hearing, Commarato testified that the location of the incident was actually at the edge of a grate approximately fifteen to twenty feet south of the area he had previously identified. (Davidow Aff Exh. D at 26-46.) Commarato's proposed amended notice of claim is consonant with the later deposition testimony. (Weitzman Aff. Exh. C.)
Therefore, between the date of the 50-h hearing on August 17, 2000, and the deposition on September 26, 2000, the City was explicitly misinformed as to the precise location of the incident. It contends that it did not investigate the location during that period because Commarato had identified an obviously hazardous location in the 50-h hearing. (Def.'s Memo. in Opp. at 4.) Thus, the issue is whether the City was prejudiced due to the six week period in which it was misinformed.
As an initial matter, Commarato responds that the City had actual prior notice of the defect because the specific defect at issue was, he claims, listed on a map previously filed with the City by the Big Apple Pothole and Sidewalk Protection Corporation. However, it is well established that a listing of an alleged sidewalk defect on such a map does not suffice to give the City actual knowledge of the essential facts of the petitioner's claim. See Rios v. City of New York, 180 A.D.2d 801, 802, 580 N.Y.S.2d 438, 439 (2d Dep't 1992).
Nonetheless, Commarato's failure to provide the correct location of the accident during those six weeks did not prejudice the City in defending the action on the merits. See Irizarry v. City of Yonkers, 193 A.D.2d 746, 597 N.Y.S.2d 729 (2d Dep't 1993). The purpose of the notice of claim requirement "is to afford the public corporation an adequate opportunity to investigate the circumstances surrounding the accident and to explore the merits of the claim while information is still readily available." Caselli v. City of New York, 105 A.D.2d 251, 252, 483 N.Y.S.2d 401 (2d Dep't 1984) (quotation omitted). "The purpose of General Municipal Law § 50-e . . . is not to supply a tool for the city to endeavor to avoid seemingly meritorious claims concerning which it has . . . received appropriate notice." Rivera, 169 A.D.2d 387 at 389, 563 N.Y.S.2d at 820.
New York courts have found in several instances that it is not an improvident exercise of discretion to permit the filing of an original or amended notice of claim after delays of similar duration. See Cruz v. New York City Housing Auth., 261 A.D.2d 296, 691 N.Y.S.2d 397 (1st Dep't 1999) (where the plaintiffs notice of claim alleged that only snow and ice contributed to her fall, and she testified at the 50-h hearing approximately two months after service of the notice of claim and five months after the accident that a large hole in the sidewalk contributed to her fall, defendants were deemed to have acquired adequate timely notice); Santarpia, 231 A.D.2d 726, 647 N.Y.S.2d 861 (the City failed to establish that initial defective notice, followed by notice of the correct address at the 50-h hearing held about five months after the accident, impeded the City's ability to investigate the claim);Irizarry, 193 A.D.2d 746, 597 N.Y.S.2d 729; Heiman v. City of New York, 85 A.D.2d 25, 30, 447 N.Y.S.2d 158, 161 (1st Dep't 1982); Beatty v. County of Saratoga, 74 A.D.2d 662, 663, 424 N.Y.S.2d 772 (3d Dep't 1980) (deeming notice within four months of the expiration of the 90-day period to be reasonable and not to cause prejudice). On the present facts, the Court cannot conclude that the six week delay in learning the actual incident location prejudiced the City.
The City additionally contends that the Court should not permit Commarato's proposed amendment because the Court could imply from Commarato's change of testimony between his 50-h hearing and his deposition that any mistake he made was not made in good faith. However, at this stage of the litigation there is insufficient evidence from which the Court can conclude that Commarato changed his testimony solely to enhance his litigation position and deprive Commarato from bringing his claim. Should it choose to do so, the City will have ample opportunity to impeach Commarato's credibility before the ultimate factfinder at a later junction.
Accordingly, Commarato's motion for leave to amend the notice of claim is granted and the City's cross-motion for summary judgment dismissing Commarato's complaint for failure to serve a proper and timely notice of claim is denied.
II. Commarato's Motion For Leave to Amend the Complaint Pursuant to Federal Rule of Civil Procedure 15(a) Is Granted.
Commarato's motion to amend the complaint pursuant to Rule 15(a) of the Federal Rules of Civil Procedure to (1) name two additional defendants — Samson Management Corp. and Joon Park — and (2) amend the location of the incident is also granted. Fed.R.Civ.P. 15(a) provides that leave to amend "shall be freely given when justice so requires." "If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claims on the merits." Foman v. Davis, 371 U.S. 178, 182 (1962). "In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be `freely given.'" Id. Because no such reason is apparent to the Court, and the City has not argued otherwise, Commarato's motion pursuant to Rule 15(a) is granted. Commarato is directed to file and serve his amended complaint within fifteen (15) days of the date of this Opinion and Order.