Opinion
No. 66341/2016.
01-17-2017
In the Matter of the Application of Amy SASS, Petitioner, For leave to serve and file an Amended Notice of Claim or, in the alternative, a Late Notice of Claim v. The COUNTY OF WESTCHESTER, Village of Scarsdale and Town of Greenburgh, Respondents.
Molod Spitz & DeSantis, P.C., New York, Robert F. Meehan, Esq., Westchester County Attorney, White Plains, for petitioner.
Molod Spitz & DeSantis, P.C., New York, Robert F. Meehan, Esq., Westchester County Attorney, White Plains, for petitioner.
The following papers (e-filed documents 1–25) were read on the E-filed petition for an order granting leave to serve an amended notice of claim.
Notice of Petition, Petition, Affidavit (Exhibits A–E)
Affirmation in Opposition (Exhibits A–D)
Reply Affirmation (Exhibits A–C)
Reply Affirmation (Exhibit A)
Affirmation (Respondent)
Upon reading the foregoing papers it is
ORDERED the petition is granted, and the amended notice of claim attached to the petition is deemed served.
On or about April 29, 2016, petitioner served a notice of claim alleging she tripped and fell on the pathway running along the Bronx River. Petitioner described the place where she fell as the pathway "underneath and north of the Crane Road Bridge," and as "between the Mushroom Bridge underpass and under the Crane Road Bridge, closer to the Crane Road Bridge ... and more specifically where the old pedestrian pathway meets the new pedestrian pathway." She described the site of her fall as the place where old cement along the path meets a newly constructed path. She attached photographs of the site which depict a lighter colored path abutting a darker colored path beneath one end of a stone arch bridge supporting a road over the Bronx River. The photographs also depict the bridge itself and a caution sign on the pathway near the site of plaintiff's fall. Finally, the notice of claim advised respondent that the site of petitioner's fall was within the area which had recently been improved by a project undertaken by the Westchester County Department of Parks, Recreation and Conservation.
Three months later, on July 8, 2016, the County of Westchester served an objection to the notice of claim in which it claimed the notice "fails to set forth with adequate specificity the place and manner in which the claim arose." Respondent asserted the "Notice of Claim provides inconsistent information with the attached pictures ... and the description of where the alleged accident took place," and that "as a result of this inconsistent information, the County is unable to properly identify where the alleged accident arose." Petitioner responded that she had adequately described the place of her fall in the notice of claim.
Thereafter, pursuant to petitioner's Freedom of Information Law request, respondents provided a copy of a work order, dated July 19, 2016, which requested repair of the pathway on each side of the Ardsley Road Bridge where asphalt and concrete meet. The repair was made on August 30, 2016. Upon receiving the copy of the work order petitioner realized she provided the wrong name of the bridge which spanned the path where she fell, and she now moves for an order granting leave to amend her notice of claim to correct the name of the bridge to the Ardsley Road Bridge. The respondent, County of Westchester, opposes the motion.
"A notice of claim must state ‘the time when, the place where and the manner in which the claim arose’ (General Municipal Law § 50–e [2 ] ). The purpose of the statutory notice of claim requirement is to afford the public corporation an adequate opportunity to investigate the circumstances surrounding the accident and to explore the merits of the claim while information is still readily available. The requirements of the statute are met when the notice describes the accident with sufficient particularity so as to enable the defendant to conduct a proper investigation thereof and to assess the merits of the claim. A court may, in its discretion, allow a mistake, irregularity, or defect in a notice of claim to be corrected as long as that mistake, irregularity, or defect was made in good faith and the public corporation was not prejudiced thereby" (Avery v. N.Y. City Transit Auth., 138 AD3d 770, 770–71 [2d Dept 2016] [internal quotations and citations omitted] ).
Here, the notice of claim described the location of the site of petitioner's fall by, among other things, attaching photographs which depict the actual bridge under which petitioner claims she fell, the height and color differential of the abutting portions of the pathway and the caution sign on the pathway at the site. In addition, petitioner identified the site as being within an area which was the subject of recent repairs made in connection with an improvement project completed by the County.
Under theses circumstances, though petitioner had misnamed the bridge in her notice of claim, the County, which had photographs of the accident site and of the actual arched stone bridge spanning the accident site, and which had been able to identify the area of plaintiff's fall as in need of repair as shown by its work order, could have ascertained the location of plaintiff's fall with a modicum of effort (Hernandez v. City of Yonkers, 74 AD3d 1025 [2d Dept 2010] ; Seriata v. City of Yonkers, 292 A.D.2d 456 [2d Dept 2002] ). Moreover, there is no evidence in the record that petitioner is acting in bad faith or is trying to change the location of her fall (see, Avery, supra at 771). Indeed, she provided the photographs in her notice of claim which depict the bridge under which she claims she fell and which depict the spot of her fall including the nearby caution sign. Thus, petitioner is granted leave to amend her notice of claim.