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Plaintiff Should Have Been Allowed to Amend Complaint to Allege City Had Notice of Sidewalk Defect

In a slip and fall case, the plaintiff did not allege the city had notice of the defect and sought to amend the complaint to add the allegation.  The Second Department determined plaintiff should have been allowed to amend:

… [T]he Supreme Court erroneously granted that branch of the City’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint on the ground that the plaintiff had failed to plead prior written notice of the alleged sidewalk defect. Instead, under the facts of this case, the Supreme Court should have granted the plaintiff’s cross motion and permitted him to amend the pleadings and the notice of claim to add an allegation that the City received prior written notice of the alleged sidewalk defect where, as here, the amendment would not prejudice or surprise the City (see CPLR 3025; General Municipal Law § 50-e[6]…).  Perez v City of New York, 2013 NY Slip Op 06553, 2nd Dept 10-9-13

 

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