You are here: / / THE PROPOSED AMENDMENT TO THE NOTICE OF CLAIM DID NOT PRESENT A NEW THEORY...
, ,

THE PROPOSED AMENDMENT TO THE NOTICE OF CLAIM DID NOT PRESENT A NEW THEORY OF NEGLIGENCE; THE MOTION TO AMEND SHOULD NOT HAVE BEEN DENIED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion to amend the notice of claim should have been granted. The amendments merely fleshed out the theory of negligence described in the original notice and did not present a new theory of liability:

The purpose of prohibiting new theories of liability in notices of claim is to prevent prejudicing the city in its ability to timely investigate the claim and provide an adequate defense … . Contrary to defendants’ argument, to the extent the notice of claim alleges affirmative negligence, plaintiff did so in the first instance. Plaintiff’s original notice of claim alleged that his injuries were caused by New York City’s “negligent . . . design, maintenance, construction and installation . . .” of the “the traffic island/extra curb/bumper” in question. Plaintiff only adds that his injuries were related to the “design, installation, and maintenance” of the delineators and bollards which are specific elements of the traffic island. This addition only alleges specific facts related to the theories of liability contained in the original claim, unlike in cases cited by defendants … . Accordingly, we find that this amendment does not seek to assert a new theory of liability, and instead merely clarifies the facts alleged in the claim, as permitted by General Municipal Law § 50-e. Burnes v City of New York, 2023 NY Slip Op 05221, First Dept 10-17-23

Practice Point: The motion to amend the notice of claim merely fleshed out the theory of negligence in the original notice and did not present a new theory. Therefore the motion should have been granted.

 

You might also like
OUT OF POSSESSION LANDLORD MAY BE LIABLE IN THIS SIDEWALK SLIP AND FALL CASE PURSUANT TO A 2019 COURT OF APPEALS DECISION; VIOLATION OF NYC ADMINISTRATIVE CODE CAN BE RAISED FOR THE FIRST TIME IN OPPOSITION TO SUMMARY JUDGMENT MOTION; QUESTION OF FACT ABOUT THE APPLICABILITY OF THE STORM IN PROGRESS DOCTRINE (FIRST DEPT). ​
PLAINTIFF-RELATOR BROUGHT A QUI TAM ACTION (ON BEHALF OF THE GOVERNMENT) AGAINST A BANK ALLEGING VIOLATION OF THE STATE FINANCE LAW; THE QUI TAM ACTION WAS DISMISSED FOR FAILURE TO STATE A CLAIM; EVEN THOUGH THE CITY SETTLED WITH THE BANK IN A RELATED ACTION, PLAINTIFF-RELATOR WAS NOT ENTITLED TO A PERCENTAGE OF THE SETTLEMENT (FIRST DEPT).
A BREACH OF CONTRACT ACTION SHOULD NOT BE CONSOLIDATED WITH A TORT ACTION (FIRST DEPT).
HUMAN RESOURCES ADMINISTRATION SECURITY DEPOSIT VOUCHERS MUST BE ACCEPTED IN LIEU OF CASH DEPOSITS; TO REFUSE TO ACCEPT THE VOUCHERS VIOLATES THE NYC HUMAN RIGHTS LAW; THE VOUCHER PROGRAM DOES NOT VIOLATE THE SOCIAL SERVICES LAW OR THE URSTADT LAW (FIRST DEPT).
ALTHOUGH THE BOOM TRUCK WAS 700 FEET FROM WHERE IT WAS LOADED WHEN THE BOOM STRUCK AN OVERHEAD SIGN, THE TRUCK WAS AT THE WORK SITE WITHIN THE MEANING OF THE LABOR LAW, ALTHOUGH THE INDUSTRIAL CODE PROVISION ADDRESSED THE POSITION OF THE BOOM BUT NOT THE NATURE OF THE ACCIDENT, THE PROVISION WAS BROADLY WORDED AND RAISED A QUESTION OF FACT ON THE LABOR LAW 241 (6) CAUSE OF ACTION 1ST DEPT.
PHOTOGRAPH OF SIDEWALK DEFECT RAISED A QUESTION OF FACT ABOUT CONSTRUCTIVE NOTICE IN THIS SLIP AND FALL CASE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).
Parent Who, Under a Shared Custody Schedule, Has Custody of the Child the Majority of the Time, Can Not Be Ordered to Pay Child Support to the Other Parent, Financial Issues Are Irrelevant
IN THE CONTEXT OF A CONTRACT IMPOSING CAPS FOR “NONWILLFUL” AND “WILLFUL” BREACHES, THE FACT THAT THE BREACH MAY HAVE BEEN DELIBERATE DID NOT RENDER THE BREACH “WILLFUL,” WHICH SHOULD BE INTERPRETED TO REFER TO “TRULY HARMFUL, CULPABLE CONDUCT;” SUPREME COURT REVERSED (FIRST DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

FAMILY COURT DID NOT MAKE THE REQUIRED “SEARCHING INQUIRY” RE: WHETHER... EVEN THOUGH THE DEBTOR TRANSFERRED THE PROPERTY TO THE NON-DEBTOR CODEFENDANT...