Opinion
2012-01-24
Crystal DONALDSON, Petitioner–Respondent, v. NEW YORK CITY HOUSING AUTHORITY, Respondent–Appellant.
Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for Appellant. Greenstein & Milbauer, LLP, New York (Michael A. Barnett of counsel), for Respondent.
Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for Appellant. Greenstein & Milbauer, LLP, New York (Michael A. Barnett of counsel), for Respondent.
TOM, J.P., FRIEDMAN, DeGRASSE, RICHTER, MANZANET–DANIELS, JJ.
Order, Supreme Court, Bronx County (Mary Ann Brigantti– Hughes, J.), entered October 6, 2010, which, in an action for personal injuries, granted plaintiff's motion for leave to amend the notice of claim, unanimously reversed, on the law and the facts, without costs, and the motion denied.
Leave to amend the notice of claim pursuant to General Municipal Law § 50–e(6) was improperly granted since the statute only “authorizes the correction of good faith, nonprejudicial, technical defects or omissions, not substantive changes in the theory of liability” ( Scott v. City of New York, 40 A.D.3d 408, 410, 836 N.Y.S.2d 140 [2007] ). Plaintiff's proposed amendment impermissibly sought to change the theory of liability from a slip and fall on the sidewalk outside defendant's building due to an accumulation of snow/ice, to a slip and fall due to a wet metal weather strip located on the threshold of the building's front door ( see Santana v. New York City Tr. Auth., 88 A.D.3d 539, 930 N.Y.S.2d 587 [2011]; Torres v. New York City Hous. Auth., 261 A.D.2d 273, 690 N.Y.S.2d 257 [1999], lv. denied 93 N.Y.2d 816, 697 N.Y.S.2d 563, 719 N.E.2d 924 [1999] ). Moreover, the prejudice to defendant is apparent inasmuch as the original notice of claim was insufficient to allow defendant to conduct a meaningful investigation of plaintiff's amended claim ( see Santana at 540, 930 N.Y.S.2d 587).