You are here: / / 2 1/2 Year Delay In Correcting Location of the Slip and Fall Described...
,

2 1/2 Year Delay In Correcting Location of the Slip and Fall Described in the Notice of Claim Prejudiced the Defendant/Motion for Leave to File an Amended Notice Properly Denied

The Second Department determined plaintiffs' motion to amend the notice of claim to change the location of the accident (slip and fall on ice and snow) was properly denied. Although the error was not made in bad faith, the 2 1/2 year delay in correcting the error prejudiced the defendant town agency:

Pursuant to General Municipal Law § 50-e(6), a court has discretion to grant leave to serve an amended notice of claim where the error in the original notice was made in good faith and where the other party has not been prejudiced thereby … . Here, while there is no indication that the error regarding the location of the subject accident in the original notice of claim was made in bad faith, the record demonstrates prejudice to the respondent, the defendant Town of Babylon Industrial Development Agency (hereinafter the Agency), as a result of the error. The original notice of claim misidentified the location of the accident as the “walkway/pathway” in front of 595 Smith Street, East Farmingdale, rather than the correct location, the “roadway/parking lot” at 540 Smith Street, East Farmingdale. Furthermore, the subsequent complaint, bill of particulars, photographs of the purported accident location, supplemental bill of particulars, and even a second supplemental bill of particulars served almost 2½ years after the accident, all of which continued to misidentify the accident location, failed to dissipate the prejudice to the Agency in its attempt to conduct a timely and meaningful investigation … . The plaintiffs contend that the Agency's ability to conduct a physical examination of the snow and ice condition that allegedly caused the injured plaintiff's accident was not affected by the error in the notice of claim, since that condition undoubtedly had changed by the time the original notice was served. However, the record reveals that the Agency's ability to investigate other aspects of the occurrence and to interview witnesses was hampered by the plaintiffs' delay of more than 2½ years in serving a third supplemental bill of particulars identifying the correct accident location and in moving for leave to serve an amended notice of claim … . Torres v Town of Babylon, 2014 NY Slip Op 08901, 2nd Dept 12-24-14

 

You might also like
Forum Selection Clause in Nursing Home Admission Agreement Enforceable
Prosecutor’s Circumvention of the Bruton Rule Required Reversal
THE PETITION SEEKING LEAVE TO COMMENCE AN ACTION AGAINST THE MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION (MVAIC) IN THIS PEDESTRIAN ACCIDENT CASE SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING, THERE WERE QUESTIONS OF FACT ABOUT WHETHER THE NOTICE CONDITIONS PRECEDENT TO THE ACTION WERE MET (SECOND DEPT).
Denial of Area Variance In the Absence of Evidence of a Detrimental Effect on the Community Was Arbitrary and Capricious
PLAINTIFF WAS MOVING A HEAVY COMPRESSOR ON A PLANK OVER A TWO-FOOT-DEEP TRENCH WHEN THE PLANK BROKE; THE INJURY WAS COVERED BY LABOR LAW 240(1) AS AN ELEVATION-RELATED INCIDENT (SECOND DEPT).
Procedure for Determining a Motion to Dismiss Pursuant to CPLR 3211 (a)(7) Where the Defendant Submits Evidence Explained/Elements of Gross Negligence Explained
Plaintiff Breached Contract By Not Being Ready on the Time-of-the-Essence Date and Was Therefore Not Entitled to a Return of the Downpayment/Plaintiff’s “Tortious-Interference-with-Contract” Cause of Action Against Brokers Dismissed Because Sellers Did Not Breach the Contract
OBJECTIVE MEASUREMENTS ARE NOT NECESSARY TO PROVE A SIDEWALK HEIGHT DIFFERENTIAL DEFECT IS TRIVIAL; HOWEVER, HERE THE DEPOSITION TESTIMONY, THE PHOTOGRAPHS AND THE OPINION OF A HUMAN FACTORS EXPERT (WHICH WAS NOT BASED ON OBJECTIVE MEASUREMENTS) DID NOT SUPPORT SUPREME COURT’S FINDING THE DEFECT IS TRIVIAL AS A MATTER OF LAW (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Evidence of General Cleaning Practices Is Not Sufficient to Demonstrate the... Emergency Doctrine Does Not Apply Where Party Invoking It Contributed to the...