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MOTION FOR LEAVE TO AMEND NOTICE OF CLAIM TO INDICATE PLAINTIFF WAS RIDING A BICYCLE AT THE TIME OF THE ACCIDENT PROPERLY GRANTED.

The Second Department determined plaintiff’s motion for leave to amend the notice of claim was properly granted in this bicycle accident case. The notice of claim stated plaintiff was “lawfully traveling” on a service road when injured by a defect in the road. The amendment sought to indicate plaintiff was riding a bicycle at the time he was injured:

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A court may, in its discretion, grant an application for leave to serve an amended notice of claim if the mistake, omission, irregularity, or defect in the original notice was made in good faith, and the municipality has not been prejudiced … . In making a determination as to whether the municipality has been prejudiced, the court may consider the evidence adduced at a hearing conducted pursuant to General Municipal Law § 50-h, as well as any other evidence that is properly before the court … .

Here, the record does not show any bad faith on the part of the plaintiff, and the County failed to show that it would be prejudiced by the amendment. In particular, the County does not allege that the condition of the roadway changed prior to the service of the summons and complaint, which alleged that the plaintiff was injured while bicycling. Moreover, the record shows that Nassau County Police Department EMS personnel responded to the scene of the accident, and EMS personnel prepared a written report indicating that the plaintiff fell from a bicycle. Fast v County of Nassau, 2017 NY Slip Op 03734, 2nd Dept 5-10-17

 

MUNICIPAL LAW (MOTION FOR LEAVE TO AMEND NOTICE OF CLAIM TO INDICATE PLAINTIFF WAS RIDING A BICYCLE AT THE TIME OF THE ACCIDENT PROPERLY GRANTED)/NEGLIGENCE (MUNICIPAL LAW, MOTION FOR LEAVE TO AMEND NOTICE OF CLAIM TO INDICATE PLAINTIFF WAS RIDING A BICYCLE AT THE TIME OF THE ACCIDENT PROPERLY GRANTED)/NOTICE OF CLAIM (MOTION FOR LEAVE TO AMEND NOTICE OF CLAIM TO INDICATE PLAINTIFF WAS RIDING A BICYCLE AT THE TIME OF THE ACCIDENT PROPERLY GRANTED)

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