Summary
finding the plaintiffs could raise a derivative claim not asserted in their original notice of claim, since the derivative claim was "inadvertently omitted from the original notice," and the defendant "suffered no prejudice, since it received actual notice of the claim in plaintiffs' complaint"
Summary of this case from Perez v. City of New YorkOpinion
November 27, 2001.
Order, Supreme Court, New York County (Eileen Bransten, J.), entered June 8, 2000, which denied defendant's motion to dismiss Peter Sciolto's claims for loss of services and loss of consortium for failure to file a timely notice of claim, and which granted plaintiffs' cross motion to serve an amended notice of claim to include such causes of action, unanimously affirmed, without costs.
Lawrence Heisler, for defendant-appellant.
Before: Andrias, J.P., Wallach, Lerner, Rubin, Buckley, JJ.
Plaintiffs neglected to include the derivative claim for loss of consortium and loss of services in their original notice of claim, but did include such causes of action in their complaint. Thus, the court properly allowed plaintiffs to amend the notice of claim to include the derivative claims inadvertently omitted from the original notice. Defendant suffered no prejudice, since it received actual notice of the claim in plaintiffs' complaint (see, General Municipal Law § 50-[6]; Burgarella v. City of New York, 265 A.D.2d 361; Dodd v. Warren, 110 A.D.2d 807). This Court's holding in Watson v. New York City Tr. Auth. ( 269 A.D.2d 162) is not to the contrary, since the plaintiff therein deliberately omitted the derivative claim of loss of consortium from the complaint, and he never moved to amend the notice of claim pursuant to General Municipal Law § 50-e.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.