Opinion
May 15, 1995
Appeal from the Supreme Court, Orange County (Owen, J.).
Ordered that the appeals from the orders are dismissed; and it is further,
Ordered that the judgments are affirmed; and it is further,
Ordered that the respondents, appearing separately and filing separate briefs, are awarded one bill of costs.
The appeal from the intermediate orders must be dismissed because the right of direct appeal therefrom terminated with the entry of judgments in the action (see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on appeal from the orders are brought up for review and have been considered on the appeal from the judgments (see, CPLR 5501 [a] [1]).
On March 11, 1993, the plaintiff Betty Ann Eherts, while driving on Neversink Drive (County Road 80) in the Town of Deerpark, County of Orange, skidded on a patch of ice and spun off the road into a tree. In her notices of claim filed with the Town and the County on or about May 6, 1993, the plaintiff — relying, apparently, on an incorrect police report — identified the site of the ice patch as being one half of a mile south of the Hickory Avenue intersection in the southbound lane on Neversink Drive. At her hearing pursuant to General Municipal Law § 50-h on July 2, 1993, however, Ms. Eherts testified that her accident had occurred about a mile away from this location, as she was traveling northbound on Neversink Drive, at some point north of Hickory Avenue. Thereafter, the plaintiffs failed to move to amend their notices of claim, and indeed repeated the incorrect accident location in their complaint, served on or about July 27, 1993, and in their bill of particulars, served on or about September 14, 1993. The County sent an investigator to examine the incorrect accident site before the hearing was held, and the Town also claimed to have dispatched an investigator to survey the wrong location. The defendants moved separately for summary judgment, and the court granted their motions. We now affirm.
It is well established that a plaintiffs' complaint is properly dismissed where they have failed to identify with sufficient particularity the location of the accident in their notice of claim (Caselli v City of New York, 105 A.D.2d 251, 253; see also, Thomas v Town of Oyster Bay, 190 A.D.2d 731; Cappadonna v New York City Tr. Auth., 187 A.D.2d 691). The cases are also in agreement that where a municipality is misled by an erroneous notice of claim to conduct an investigation at the wrong situs, this circumstance by itself constitutes "serious prejudice" to the defendant, warranting dismissal of the complaint (Setton v City of New York, 174 A.D.2d 723; Konsker v City of New York, 172 A.D.2d 361; Krug v City of New York, 147 A.D.2d 449). The defect is not cured by submission of photographs of the correct location (Konsker v City of New York, supra, at 362); nor does the plaintiffs' assertion that the accident scene is essentially unchanged since the date of the accident constitute a satisfactory substitute for the municipality's opportunity to conduct a meaningful investigation (Serrano v City of New York, 143 A.D.2d 652; Matter of Malla v City of New York, 129 A.D.2d 580; Martire v City of New York, 129 A.D.2d 567; Mazza v City of New York, 112 A.D.2d 921). Bracken, J.P., Pizzuto, Santucci and Friedmann, JJ., concur.