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Mazza v. City of New York

Appellate Division of the Supreme Court of New York, Second Department
Aug 5, 1985
112 A.D.2d 921 (N.Y. App. Div. 1985)

Opinion

August 5, 1985

Appeal from the Supreme Court, Richmond County (Felig, J.).


Judgment affirmed, without costs or disbursements.

A court may, in its discretion, grant a motion for leave to amend a notice of claim (General Municipal Law § 50-e) where it determines that two conditions have been met: first, the mistake, omission, irregularity or defect in the original notice must have been made in good faith, and second, it must appear that the public corporation has not been prejudiced thereby ( Caselli v. City of New York, 105 A.D.2d 251, 254; Nouri v. City of New York, 90 A.D.2d 745, 746).

There is no claim in this case that the original notice of claim was prepared in bad faith. However, the purpose of the statutory notice of claim requirement (General Municipal Law § 50-e) is to provide a public corporation with "an adequate opportunity to investigate the circumstances surrounding the accident and to explore the merits of the claim while information is still readily available" ( Teresta v. City of New York, 304 N.Y. 440, 443; see also, O'Brien v. City of Syracuse, 54 N.Y.2d 353, 358; Salesian Socy. v. Village of Ellenville, 41 N.Y.2d 521, 524; Levine v. City of New York, 111 A.D.2d 785; Caselli v. City of New York, supra, at p 252). In this case, which involves an allegedly defective condition on a street, the original notice of claim was patently insufficient with respect to setting forth "the place where and the manner in which the claim arose" with adequate specificity (General Municipal Law § 50-e; see also, Schwartz v. City of New York, 250 N.Y. 332; Caselli v. City of New York, supra, at p 253; Cruz v. City of New York, 95 A.D.2d 790; Evers v. City of New York, 90 A.D.2d 786; Faubert v. City of New York, 90 A.D.2d 509; Matter of Klobnock v. City of New York, 80 A.D.2d 854; Campbell v. City of New York, 78 A.D.2d 631). As a result, the city was clearly prejudiced, because the defect in the notice of claim deprived it of the opportunity to conduct the type of prompt and adequate investigation that General Municipal Law § 50-e is intended to provide. Moreover, that prejudice was not dissipated merely because the plaintiffs finally provided the city with a specific description of the place where the claim arose more than 13 months after the date of the injury. Finally, plaintiff Karen Mazza'a assertion that she had visited the location more than 15 months after the fact and found the alleged defect to be unchanged lacked the necessary assurance to enable the city to conduct a meaningful, belated investigation.

Plaintiff Karen Mazza was allegedly injured on November 2, 1982. On or about December 13, 1983, plaintiffs served their summons and complaint and their motion for leave to amend the notice of claim, both of which contained specific descriptions of the place where the claim arose. On December 16, 1983, plaintiff Karen Mazza gave testimony regarding the place of occurrence at a comptroller's hearing (General Municipal Law § 50-h).

Under all of the circumstances, the denial of plaintiffs' motion for leave to amend their notice of claim, and the granting of the city's cross motion to dismiss the complaint as against it, was not an improvident exercise of discretion. Gibbons, J.P., Niehoff, Rubin and Kunzeman, JJ., concur.


Summaries of

Mazza v. City of New York

Appellate Division of the Supreme Court of New York, Second Department
Aug 5, 1985
112 A.D.2d 921 (N.Y. App. Div. 1985)
Case details for

Mazza v. City of New York

Case Details

Full title:KAREN MAZZA et al., Appellants, v. CITY OF NEW YORK, Respondent, et al.…

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

Date published: Aug 5, 1985

Citations

112 A.D.2d 921 (N.Y. App. Div. 1985)

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