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MOTION TO AMEND NOTICE OF CLAIM TO ADD NEW THEORY OF LIABILITY SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined plaintiff's motion to amend the notice of claim should not have been granted. The notice of claim alleged plaintiff fell because of an uneven, broken sidewalk. The amended notice of claim alleged plaintiff slipped on snow or ice:

“Amendments to notices of claim are appropriate only to correct good faith and nonprejudicial technical mistakes, defects or omissions, not substantive changes in the theory of liability'” … . Here, the proposed amendments to the notice of claim included a substantive change to the facts and added a new theory of liability. “Such changes are not technical in nature and are not permitted as late-filed amendments to a notice of claim under General Municipal Law § 50-e[6]” … . Moreover, under the circumstances of this case, the granting of leave to serve and file the proposed amended notice of claim prejudiced NYCHA by depriving it of the opportunity to promptly and meaningfully investigate the claim … .

Nor would it have been proper to grant the plaintiff's cross motion on the basis that it was, in effect, for leave to serve and file a late notice of claim. The plaintiff's motion was not made until May 13, 2014, or almost two years and four months after the happening of the accident on January 21, 2012. The plaintiff's failure to petition for leave to serve a late notice of claim within 1 year and 90 days of the date that his claim accrued deprived the Supreme Court of authority to permit late service of a notice of claim … . Robinson v City of New York, 2016 NY Slip Op 03156, 2nd Dept 4-27-16


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