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MOTION TO AMEND THE NOTICE OF CLAIM IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED, THE NOTICE ADDED A NEW THEORY OF CAUSATION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to amend her notice of claim in this slip and fall case should not have been granted. The motion was made two years after the complaint was filed and included a new theory of causation:

A timely served notice of claim dated June 1, 2015, alleged, in relevant part, that the steps and/or stairs were “defective,” “uneven, misleveled, smooth” with a “slick surface,” and that the New York City Transit Authority and the Metropolitan Transportation Authority (hereinafter together the defendants), were negligent “in the ownership, operation, control, and maintenance” of the stairs. The plaintiff subsequently filed a complaint dated April 12, 2016, alleging, in relevant part, that her injuries were caused by the defendants’ negligence in the ownership, operation, management, maintenance, care, custody, and control of the premises.

More than two years later, in April 2018, the plaintiff moved pursuant to General Municipal Law § 50-e(6) for leave to amend her notice of claim to remove any mention of the stairs being “uneven, misleveled, smooth” with a “slick surface,” and to add new allegations that the stairs were “defectively installed . . . and/or designed . . . with a hole/gap upon which [the plaintiff’s] foot was caused to trip and fall.” …

“A notice of claim may be amended only to correct good faith and nonprejudicial technical mistakes, omissions, or defects, not to substantively change the nature of the claim or the theory of liability” … . Amendments of a substantive nature are not within the purview of General Municipal Law § 50-e(6) … .

Here, the plaintiff’s notice of claim made no allegations of any “hole/gap” in which the plaintiff’s foot got caught, or that the stairs were defectively installed or designed … . Therefore, the proposed amendments were not technical in nature; rather, they were of a substantive nature beyond the purview of General Municipal Law § 50-e(6) … . Ryabchenko v New York City Tr. Auth., 2019 NY Slip Op 05430, Second Dept 7-3-19

 

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