Opinion
2011-08-9
Gladys SANCHEZ, respondent,v.CITY OF NEW YORK, et al., appellants, et al., defendants.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F.X. Hart, Pamela Seider Dolgow, and Jane L. Gordon of counsel), for appellants.Kaplan & Kaplan, Brooklyn, N.Y. (Cary H. Kaplan of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants City of New York and the Police Department of the City of New York appeal from an order of the Supreme Court, Kings County (Velasquez, J.), dated May 20, 2010, which granted the plaintiff's motion pursuant to General Municipal Law § 50–e(6) for leave
to serve an amended notice of claim and denied their cross motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that the notice of claim was not timely filed.
ORDERED that the order is affirmed, with costs.
General Municipal Law § 50–e(6) authorizes a court, in its discretion, to grant leave to serve an amended notice of claim where the error in the original notice was made in good faith and where the other party has not been prejudiced thereby. Here, there is no indication that the typographical error in setting forth the accident date in the original notice of claim was made in bad faith. Moreover, the appellants did not demonstrate any actual prejudice as a result of the error, and the record discloses no basis to presume the existence of prejudice. Furthermore, contrary to the appellants' contention, a claimant is not precluded from seeking relief pursuant to General Municipal Law § 50–e(6) because an error in setting forth the accident date in the original notice of claim makes it appear that the notice of claim was served beyond the 90–day statutory period ( see Matter of Puzio v. City of New York, 24 A.D.3d 679, 808 N.Y.S.2d 314; Matter of Berko v. City of New York, 302 A.D.2d 594, 595, 755 N.Y.S.2d 635; Perry v. City of New York, 246 A.D.2d 380, 381, 667 N.Y.S.2d 722; cf. Elliot v. County of Nassau, 53 A.D.3d 561, 562–563, 862 N.Y.S.2d 90). Accordingly, the Supreme Court providently exercised its discretion in granting the plaintiff's motion for leave to serve an amended notice of claim and properly denied the appellants' cross motion for summary judgment dismissing the complaint insofar as asserted against them based upon the plaintiff's alleged failure to serve a timely notice of claim ( see Ritchie v. Felix Assocs., LLC, 60 A.D.3d 402, 873 N.Y.S.2d 628; Gatewood v. Poughkeepsie Hous. Auth., 28 A.D.3d 515, 813 N.Y.S.2d 203; Matter of Puzio v. City of New York, 24 A.D.3d 679, 808 N.Y.S.2d 314; Lin v. City of New York, 305 A.D.2d 553, 554, 759 N.Y.S.2d 394; Matter of Berko v. City of New York, 302 A.D.2d at 595, 755 N.Y.S.2d 635; Rosetti v. City of Yonkers, 288 A.D.2d 287, 288, 732 N.Y.S.2d 878; Formanek v. New York City Hous. Auth., 197 A.D.2d 664, 603 N.Y.S.2d 15; Zinnamon v. City of New York, 197 A.D.2d 618, 602 N.Y.S.2d 696).
DILLON, J.P., ENG, SGROI and MILLER, JJ., concur.