Opinion
1018 1 Index 302641/15
10-24-2019
Nakia SCOTT, Plaintiff–Appellant, v. NEW YORK CITY HOUSING AUTHORITY, Defendant–Respondent.
Pollack Pollack Isaac & DeCicco, LLP, New York (Christopher J. Soverow of counsel), for appellant. Lester Schwab Katz & Dwyer, LLP, New York (John Sandercock of counsel), for respondent.
Pollack Pollack Isaac & DeCicco, LLP, New York (Christopher J. Soverow of counsel), for appellant.
Lester Schwab Katz & Dwyer, LLP, New York (John Sandercock of counsel), for respondent.
Friedman, J.P., Kapnick, Oing, Singh, JJ.
Order, Supreme Court, Bronx County (Lline´t M. Rosado, J.), entered on or about July 23, 2018, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Summary judgment was properly granted in this action where plaintiff alleges that he was injured when he slipped and fell while descending an interior stairway in a building owned by defendant. The original notice of claim that was timely filed with defendant failed to provide it with the correct accident location as required by General Municipal Law § 50–e(2), and the photographs and plaintiff's 50–h hearing testimony failed to correct the mistake (see Atwater v. County of Suffolk, 50 A.D.3d 713, 714–715, 855 N.Y.S.2d 226 [2d Dept. 2008], lv denied 11 N.Y.3d 702, 864 N.Y.S.2d 389, 894 N.E.2d 653 [2008] ). Although plaintiff testified at his 50–h hearing that the accident occurred at 535 Havemeyer and not 585 Randall Avenue as set forth in the original notice of claim, he also testified at his 50–h hearing that he fell in stairwell "B" as he descended the stairway, but could not recognize the location shown in the photographs (see Reyes v. City of New York, 281 A.D.2d 235, 722 N.Y.S.2d 17 [1st Dept. 2001] ). It was not until his deposition two years after the accident that he testified that stairwell "A" was where he fell. Since plaintiff never sought to amend his notice of claim pursuant to General Municipal Law § 50–e(6), defendant did not have to establish that it was prejudiced by the mistake (see Davis v. New York City Tr. Auth., 117 A.D.3d 586, 587, 986 N.Y.S.2d 449 [1st Dept. 2014] ).
Plaintiff's subsequent service of a corrected notice of claim that states that the accident happened at 535 Havemeyer Avenue in stairwell "A" is unavailing since that notice is a nullity because it was untimely and served without leave of court (see Bobko v. City of New York, 100 A.D.3d 439, 953 N.Y.S.2d 214 [1st Dept. 2012] ).
In any event, upon a search of the record, defendant is entitled to summary judgment on the merits. Defendant met its initial burden of demonstrating that it neither created the hazardous condition nor had actual or constructive notice of its existence. In response, plaintiff failed to create an issue of fact. His testimony was clear that he did not see the allegedly dangerous condition before his accident, nor did he aver that he or anyone else complained about the stairwell's condition prior to the accident.
We have considered plaintiff's remaining arguments and find them unavailing.