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Olivera v. City of New York

Appellate Division of the Supreme Court of New York, First Department
Mar 2, 2000
270 A.D.2d 5 (N.Y. App. Div. 2000)

Summary

concluding that notice of claim for property damage did not give sufficient notice that motorist was also filing suit for personal injuries and refusing to permit amendment where alteration "would alter the substantive nature of claim"

Summary of this case from AEGIS INSURANCE v. PORT AUTHORITY OF NY

Opinion

March 2, 2000

Order, Supreme Court, Bronx County (Gerald Esposito, J.), entered April 5, 1999, which, in an action for personal injuries sustained in a collision between the parties' motor vehicles, inter alia, denied plaintiff's motion for leave to serve a late notice of claim, or, in the alternative, to amend his previously filed notice of claim for property damages so as to include a claim for personal injuries, and granted defendant City's cross motion to dismiss the complaint, unanimously affirmed, without costs.

Mark A. Varrichio, for Plaintiff-Appellant.

Sharyn Rootenberg, for Defendants-Respondents.

SULLIVAN, P.J., ROSENBERGER, WALLACH, ANDRIAS, JJ.


Assuming arguendo that plaintiff's application was timely, we affirm on substantive grounds. Plaintiff served a notice of claim that, while timely, indicates property damage only, and the police report on which plaintiff relies, while providing his name and address and indicating that he was injured, does not describe either the nature or severity of his injuries or indicate that he was removed from the accident scene by ambulance to a City hospital. To adopt plaintiff's position that such circumstances gave defendant timely actual notice of the facts constituting his claim would be to substitute police reports for notices of claim in every instance, mandate that defendant investigate every possible cause of action that might be suggested in an accident report, disregard the prejudice caused by the lost opportunity to conduct a prompt investigation, and "effectively vitiate the protections afforded public corporations by [General Municipal Law § 50-e]" (Caselli v. City of New York, 105 A.D.2d 251, 256).

Nor can the personal injury claim be asserted by way of amendment of the timely property damage notice of claim. General Municipal Law § 50-e(6) permits amendment to a notice of claim to correct a mistake or omission made in good faith, provided the public corporation is not prejudiced. An amendment that would alter the substantive nature of the claim, such as this, does not fall within the statute's purview (see, Steinberg v. Village of Garden City, 247 A.D.2d 463).

THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.


Summaries of

Olivera v. City of New York

Appellate Division of the Supreme Court of New York, First Department
Mar 2, 2000
270 A.D.2d 5 (N.Y. App. Div. 2000)

concluding that notice of claim for property damage did not give sufficient notice that motorist was also filing suit for personal injuries and refusing to permit amendment where alteration "would alter the substantive nature of claim"

Summary of this case from AEGIS INSURANCE v. PORT AUTHORITY OF NY

concluding that notice of claim for property damage did not give sufficient notice that motorist was also filing suit for personal injuries and refusing to permit amendment where alteration "would alter the substantive nature of claim"

Summary of this case from AEGIS v. PORT AUTHORITY OF NY NEW JERSEY

In Olivera, this Court held that the plaintiff could not amend a property damage claim by adding a personal injury claim.

Summary of this case from Goodwin v. New York City Housing

In Olivera v. City of New York (270 A.D.2d 5 [1st Dept 2000]), the Appellate Division, First Department affirmed denial of leave to serve a late notice of claim asserting personal injuries, where the original, timely notice of claim indicated property damage only.

Summary of this case from Boles v. City of N.Y.
Case details for

Olivera v. City of New York

Case Details

Full title:JOSEPH OLIVERA, Plaintiff-Appellant, v. THE CITY OF NEW YORK, et al.…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Mar 2, 2000

Citations

270 A.D.2d 5 (N.Y. App. Div. 2000)
704 N.Y.S.2d 42

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