Opinion
September 27, 1993
Appeal from the Supreme Court, Kings County (Hutcherson, J.).
Ordered that the order is affirmed, with costs.
The plaintiffs moved to amend their notice of claim so as to correct the date on which the infant plaintiff Rudolfo Toro allegedly slipped and fell down a flight of stairs. According to the original notice of claim and the complaint served, the infant plaintiff was caused to fall down a flight of steps by reason of a puddle of water surrounding debris on the landing to the staircase. As the condition complained of was extremely transitory, the purpose of General Municipal Law § 50-e, which is to allow a municipal defendant the opportunity of investigating the situs of the alleged difficulty at a time before there is any change thereto, would have been entirely frustrated had this application been granted (see, Caselli v City of New York, 105 A.D.2d 251). To allow amendment of the notice of claim some 23 months after the alleged occurrence so as to change the date of the accident would create unquestionable prejudice. Thompson, J.P., Santucci and Joy, JJ., concur.
The law is clear that where, as here, a plaintiff moves to correct a mistake in his notice of claim, leave should be given, provided that the original error was not made in bad faith, and provided that the defendant is not prejudiced thereby (see, General Municipal Law § 50-e). Here, there is no allegation of bad faith; and although the defendant claims that its investigative efforts were hampered, it does not appear that any investigation was ever attempted (see, Tucker v Long Is. R.R. Co., 128 A.D.2d 517). In any event, it is difficult to imagine how the defendant could be prejudiced by a three-day correction of the date of the accident, in view of the fact that the negligence claimed — water and debris in a stairwell — would presumably have been removed before the expiration of the statutory 90-day period within which the plaintiffs could properly file their notice of claim. In consequence, in my view, the court improvidently exercised its discretion in denying the plaintiffs' motion.