Opinion
June 16, 1994
Appeal from the Supreme Court, New York County (Walter M. Schackman, J.).
In his notice of claim filed with the City on August 29, 1991, petitioner alleges that on July 11, 1991, he tripped and fell over a defect in the sidewalk on the northeast corner of Seventh Avenue and West 18th Street. The City conducted an investigation of the site on October 3, 1991. Thereafter, by order to show cause dated May 13, 1992, petitioner moved to amend his notice of claim to change the site of the accident to the northwest corner of the same intersection.
Under the circumstances, we deem it an improvident exercise of the IAS Court's discretion to have granted petitioner's motion inasmuch as it is now well settled that, where the municipality is misled by the erroneous notice of claim to conduct an investigation at the wrong site, this circumstance alone results in serious prejudice (Konsker v. City of New York, 172 A.D.2d 361, 362, lv denied 78 N.Y.2d 858). Moreover, contrary to the court's holding, the fact that a sidewalk defect on the northwest corner of the intersection was described in a map previously filed with the City by the Big Apple Pothole Sidewalk Protection Corporation does not alleviate the prejudice to the City or fulfill the purpose of an accurate notice of claim (see, Matter of Rios v. City of New York, 180 A.D.2d 801, 802; Setton v. City of New York, 174 A.D.2d 723).
Concur — Carro, J.P., Kupferman, Asch, Nardelli and Williams, JJ.