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AFTER THE CITY MOVED FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE ON THE GROUND IT DID NOT HAVE WRITTEN NOTICE OF THE ICY CONDITION, THE PLAINTIFFS, YEARS AFTER THE STATUTE OF LIMITATIONS HAD EXPIRED, MOVED FOR LEAVE TO AMEND THE NOTICE OF CLAIM TO ALLEGE THE CITY CREATED THE DANGEROUS CONDITION; THE PLAINTIFFS SHOULD NOT HAVE BEEN ALLOWED TO AMEND THE NOTICE OF CLAIM AND THE CITY SHOULD HAVE BEEN AWARDED SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiffs in this slip and fall case should not have been allowed to amend the notice of claim to add the allegation that the city created the icy condition in the parking garage. The city had moved for summary judgment because it did not have written notice of the condition. The plaintiffs then moved for leave to amend the notice of claim, years after the expiration of the statute of limitations. The city was entitled to summary judgment:

“‘A plaintiff seeking to recover in tort against a municipality must serve a notice of claim to enable authorities to investigate, collect evidence and evaluate the merits of the claim'” … . “‘A notice of claim must set forth, inter alia, the nature of the claim, and the time, place, and manner in which the claim arose'” … . “Under General Municipal Law § 50-e(6), ‘[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'” … . Here, contrary to the court’s determination, the proposed amendment to the notice of claim was not to correct a technical mistake, defect, or omission within the meaning of General Municipal Law § 50-e(6), but rather, improperly sought “to assert a new theory of affirmative negligence several years after the . . . applicable limitations period” … . Congero v City of Glen Cove, 2021 NY Slip Op 02131, Second Dept 4-7-21

 

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