Campbell v. City of New York

78 A.D.2d 631, 432 N.Y.S.2d 107, 1980 N.Y. App. Div. LEXIS 13102

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 6, 1980
• Status: Published

Opinion

In a negligence action to recover damages for personal injuries, etc., plaintiffs appeal from a judgment of the Supreme Court, Queens County, entered December 14, 1979, which dismissed their complaint at the close of their case, at a jury trial. Judgment affirmed, without costs or disbursements. The notice of claim, filed pursuant to section 50-e of the General Municipal Law, incorrectly referred to the site of the accident as the "sidewalk located on Cornaga [sic] Avenue * * * which is adjacent and/or in close proximity or contiguous with a business establishment commonly known as 'The New Pantry Bar’, whose address * * * is 1922 Coranga [sic] Avenue, Queens, New York”. The actual accident situs was the sidewalk at 1933 Cornega Avenue, fronting premises known as the "Bantry Bay” bar and diagonally across the street from 1922 Cornega Avenue. In light of this significant discrepancy, it was not an abuse of discretion for Trial Term to have denied plaintiffs’ application to amend the notice of claim (see General Municipal Law, § 50-e, subd 6). The description in the notice of claim was not reasonably sufficient to enable defendant to properly investigate the place of the accident and otherwise assess the merits of plaintiffs’ claim (see Denecke v Property Collaterals, 279 NY 105; Moran v City of Yonkers, 282 App Div 702; Ross v City of New York, 261 App Div 841, mot for lv to app den 261 App Div 933 and 285 NY 863). Damiani, J. P., Lazer, Mangano and Cohalan, JJ., concur.