Opinion
2014-03001
12-24-2014
Juana TORRES, et al., appellants, v. TOWN OF BABYLON, defendant, Town of Babylon Industrial Development Agency, respondent.
Gruenberg Kelly Della, Ronkonkoma, N.Y. (Zachary M. Beriloff of counsel), for appellants. Hoey, King, Epstein, Prezioso & Marquez, New York, N.Y. (Regine Dely–Lazard of counsel), for respondent.
Gruenberg Kelly Della, Ronkonkoma, N.Y. (Zachary M. Beriloff of counsel), for appellants.
Hoey, King, Epstein, Prezioso & Marquez, New York, N.Y. (Regine Dely–Lazard of counsel), for respondent.
REINALDO E. RIVERA, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, ROBERT J. MILLER, and JOSEPH J. MALTESE, JJ.
Opinion In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Pitts, J.), dated February 18, 2014, which denied their motion pursuant to General Municipal Law § 50–e(6) for leave to serve an amended notice of claim.
ORDERED that the order is affirmed, with costs.
Pursuant to General Municipal Law § 50–e(6), a court has 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 (see Copeland v. City of New York, 90 A.D.3d 691, 934 N.Y.S.2d 315 ; Sanchez v. City of New York, 87 A.D.3d 576, 929 N.Y.S.2d 744 ). Here, while there is no indication that the error regarding the location of the subject accident in the original notice of claim was made in bad faith, the record demonstrates prejudice to the respondent, the defendant Town of Babylon Industrial Development Agency (hereinafter the Agency), as a result of the error. The original notice of claim misidentified the location of the accident as the “walkway/pathway” in front of 595 Smith Street, East Farmingdale, rather than the correct location, the “roadway/parking lot” at 540 Smith Street, East Farmingdale. Furthermore, the subsequent complaint, bill of particulars, photographs of the purported accident location, supplemental bill of particulars, and even a second supplemental bill of particulars served almost 2 ½ years after the accident, all of which continued to misidentify the accident location, failed to dissipate the prejudice to the Agency in its attempt to conduct a timely and meaningful investigation (see Charleston v. Incorporated Vil. of Cedarhurst, 62 A.D.3d 641, 642, 878 N.Y.S.2d 407 ; Sarkissian v. City of New York, 302 A.D.2d 583, 755 N.Y.S.2d 300 ; Matter of Valle v. New York City Hous. Auth., 224 A.D.2d 433, 637 N.Y.S.2d 757 ). The plaintiffs contend that the Agency's ability to conduct a physical examination of the snow and ice condition that allegedly caused the injured plaintiff's accident was not affected by the error in the notice of claim, since that condition undoubtedly had changed by the time the original notice was served. However, the record reveals that the Agency's ability to investigate other aspects of the occurrence and to interview witnesses was hampered by the plaintiffs' delay of more than 2 ½ years in serving a third supplemental bill of particulars identifying the correct accident location and in moving for leave to serve an amended notice of claim (see Charleston v. Incorporated Vil. of Cedarhurst, 62 A.D.3d at 642, 878 N.Y.S.2d 407 ; Ruiz v. City of New York, 237 A.D.2d 422, 423, 655 N.Y.S.2d 964 ; Rodriguez v. City of New York, 223 A.D.2d 536, 537, 636 N.Y.S.2d 388 ; Aviles v. City of New York, 202 A.D.2d 530, 531, 609 N.Y.S.2d 85 ). Accordingly, the Supreme Court did not improvidently exercise its discretion in denying the plaintiffs' motion for leave to serve an amended notice of claim.