Opinion
2011-10-18
Josephina Santos SANTANA, et al., Plaintiffs–Respondents,v.NEW YORK CITY TRANSIT AUTHORITY, et al., Defendants–Appellants.
Wallace D. Gossett, Brooklyn (Jane Shufer of counsel), for appellants.Ronemus & Vilensky, LLP, New York (Robert Vilensky of counsel), for respondents.
Wallace D. Gossett, Brooklyn (Jane Shufer of counsel), for appellants.Ronemus & Vilensky, LLP, New York (Robert Vilensky of counsel), for respondents.
Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered April 30, 2010, which, in an action for personal injuries sustained by plaintiff Josephina Santos Santana when she slipped and fell while descending a staircase in a subway station owned and operated by defendants, granted plaintiffs' motion for leave to amend the notice of claim and file a late notice of claim, unanimously reversed, on the law and the facts, without costs, and the motion denied.
The court should not have granted plaintiffs' motion for leave to amend the notice of claim pursuant to General Municipal Law § 50–e(6). Plaintiffs did not merely seek to supplement the original claim, but rather, impermissibly sought to change the theory of liability from a fall on the stairs due to snow, ice or slush to a fall due to a loose metal tread ( see Torres v. New York City Hous. Auth., 261 A.D.2d 273, 275, 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, defendant would be prejudiced by the amendment since the original notice of claim was insufficient to allow them to effectively conduct a meaningful investigation of plaintiffs' amended claim ( see id. at 274–275, 690 N.Y.S.2d 257).
In view of the foregoing, we need not reach the merits of plaintiffs' motion for leave to file a late notice of claim.