Capo v. City of New York

Appellate Division of the Supreme Court of New York

Capo v. City of New York

166 A.D.2d 201, 564 N.Y.S.2d 84, 1990 N.Y. App. Div. LEXIS 11622

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 4, 1990

StatusPublished

Cited by2 cases

This text of 166 A.D.2d 201 (Capo v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Capo v. City of New York, 166 A.D.2d 201, 564 N.Y.S.2d 84, 1990 N.Y. App. Div. LEXIS 11622 (N.Y. Ct. App. 1990).

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Opinion

Order, Supreme Court, Bronx County (Howard R. Silver, J.), entered February 28, 1989, which granted plaintiffs’ motion for leave to file an amended notice of claim, unanimously affirmed, without costs and without disbursements.

The infant plaintiff was allegedly bitten by a pit bull on July 9, 1988 at a New York City Housing Authority project in the Bronx. A timely notice of claim was filed, stating the location of the incident to be 1774 Macombs Road. The Housing Authority responded by letter of October 18, 1988, stating that it did not own, operate, or control the stated premises. Less than four weeks later, at the statutory hearing, the Housing Authority was provided with the police report indicating the premises as 1647 Macombs Road. There is no indication that the Housing Authority undertook any investigation based upon this new information. On December 7, 1988, plaintiffs brought this motion for leave to amend the notice of claim to the extent of correcting the location of the incident to reflect the latter address.

The Supreme Court’s grant of the motion for leave to amend was a sound exercise of its discretion (Mayer v DuPont Assocs., 80 AD2d 799). It is clear to us that the mistake in the initial notice of claim could only have been made in good faith and that the public corporation was not prejudiced by the mistake or defect (Caselli v City of New York, 105 AD2d 251). Notice of the correct address was actually received, and additionally, plaintiffs made this motion in sufficient time to allow defendant to conduct an adequate investigation as to whether the pit bull was kept and maintained by an employee of the Housing Authority, the building superintendent. Concur—Milonas, J. P., Rosenberger, Asch, Kassal and Rubin, JJ.

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Order, Supreme Court, Bronx County (Howard R. Silver, J.), entered February 28, 1989, which granted plaintiffs’ motion for leave to file an amended notice of claim, unanimously affirmed, without costs and without disbursements.

The infant plaintiff was allegedly bitten by a pit bull on July 9, 1988 at a New York City Housing Authority project in the Bronx. A timely notice of claim was filed, stating the location of the incident to be 1774 Macombs Road. The Housing Authority responded by letter of October 18, 1988, stating that it did not own, operate, or control the stated premises. Less than four weeks later, at the statutory hearing, the Housing Authority was provided with the police report indicating the premises as 1647 Macombs Road. There is no indication that the Housing Authority undertook any investigation based upon this new information. On December 7, 1988, plaintiffs brought this motion for leave to amend the notice of claim to the extent of correcting the location of the incident to reflect the latter address.

The Supreme Court’s grant of the motion for leave to amend was a sound exercise of its discretion (Mayer v DuPont Assocs., 80 AD2d 799). It is clear to us that the mistake in the initial notice of claim could only have been made in good faith and that the public corporation was not prejudiced by the mistake or defect (Caselli v City of New York, 105 AD2d 251). Notice of the correct address was actually received, and additionally, plaintiffs made this motion in sufficient time to allow defendant to conduct an adequate investigation as to whether the pit bull was kept and maintained by an employee of the Housing Authority, the building superintendent. Concur—Milonas, J. P., Rosenberger, Asch, Kassal and Rubin, JJ.

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Bluebook (online)

166 A.D.2d 201, 564 N.Y.S.2d 84, 1990 N.Y. App. Div. LEXIS 11622, Counsel Stack Legal Research, https://law.counselstack.com/opinion/capo-v-city-of-new-york-nyappdiv-1990.

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