The First Department, over an extensive two-justice dissent, determined the petitioners’ motion for leave to file a late notice of claim against the city should have been granted. Petitioner was using a bicycle provided by New York City’s Citi Bike program when he struck a wheel stop and flipped over, injuring his head. In a federal diversity action stemming from the same incident, the city asserted an affirmative defense based upon petitioner’s failure to wear a helmet. Petitioner, in the federal action, was allowed thereafter to assert a negligence claim against the city based upon the city’s failure to rent helmets. Petitioner, in the state action, then sought both to amend the notice of claim and to file a late notice of claim to reflect the helmet allegation, as well as a negligent design allegation (re: placement of the wheel stop). The motion to amend was rejected by the First Department but the motion to file a late notice (General Municipal Law 50-3 (5)) was granted:
Here, to the extent that the allegations concerning the design of the station differ between the original notice of claim and the proposed amended notice of claim, the City unquestionably had actual notice of the claims in the latter document, based on the original notice of claim. Further, it was not prejudiced by petitioner’s amplification of the claims in the proposed amended notice, since the alleged defect was not transitory in nature … . * * *
We note that petitioner’s failure to use a helmet is akin to a plaintiff’s failure to use a seatbelt in a motor vehicle case. It is well settled that any such failure does not go to comparative liability but rather to how damages, if any, should be assessed … . Further, the City bears the burden of proving that some or all of petitioner’s injuries would not have been received had he used a helmet … . Accordingly, petitioners had no reason to make a claim concerning the lack of helmets until the City raised the issue. Additionally, * * * the City cannot claim to be prejudiced where it chose to inject a mitigation defense into the federal action, and petitioners are merely trying to ensure that their notice of claim supports their effort to rebut that defense … . Matter of Corwin v City of New York, 2016 NY Slip Op 05663, 1st Dept 7-28-16
MUNICIPAL LAW (PETITIONER SHOULD HAVE BEEN ALLOWED TO FILE A LATE NOTICE OF CLAIM IN RESPONSE TO THE CITY’S RAISING OF AN AFFIRMATIVE DEFENSE IN A RELATED FEDERAL ACTION)/NEGLIGENCE (MUNICIPAL LAW, PETITIONER SHOULD HAVE BEEN ALLOWED TO FILE A LATE NOTICE OF CLAIM IN RESPONSE TO THE CITY’S RAISING OF AN AFFIRMATIVE DEFENSE IN A RELATED FEDERAL ACTION)/NOTICE OF CLAIM (ALTHOUGH THE NOTICE COULD NOT BE AMENDED, A LATE NOTICE ASSERTING A NEW THEORY SHOULD HAVE BEEN ALLOWED)/BICYCLISTS (FAILURE TO WEAR A HELMET GOES TO COMPARATIVE NEGLIGENCE)/HELMETS (BICYCLISTS, FAILURE TO WEAR A HELMET GOES TO COMPARATIVE NEGLIGENCE)