Caselli v. City of New York

105 A.D.2d 251, 483 N.Y.S.2d 401, 1984 N.Y. App. Div. LEXIS 20695
CourtAppellate Division of the Supreme Court of the State of New York
DecidedDecember 31, 1984
StatusPublished
Cited by195 cases

This text of 105 A.D.2d 251 (Caselli 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
Caselli v. City of New York, 105 A.D.2d 251, 483 N.Y.S.2d 401, 1984 N.Y. App. Div. LEXIS 20695 (N.Y. Ct. App. 1984).

Opinion

OPINION OF THE COURT

Bracken, J.

Subdivision 2 of section 50-e of the General Municipal Law provides, inter alia, that a notice of claim shall set forth “the time when, the place where and the manner in which the claim [252]*252arose”. This appeal raises the question of the degree of specificity required by the statute in setting forth the place of occurrence and also the further question of the extent to which a lack of specificity with respect to such information may be disregarded.

Plaintiff was allegedly injured when she fell while walking across a street intersection located within the City of New York. Plaintiff thereafter timely served a notice of claim upon the city which alleged, inter alia, that she was “crossing the public roadway at the intersection of Queens Boulevard and Woodhaven Boulevard, Borough of Queens, City and State of New York when she was caused to be precipitated to the ground * * * through the carelessness and negligence of the City of New York * * * in the ownership, operation, control, maintenance, repair, and inspection of the pedestrian traffic and roadway and in causing, permitting and allowing a public and private nuisance to be, become and remain at the aforesaid location”. The notice contained no further description of the place of occurrence or the manner in which the injuries were allegedly sustained.

Plaintiff subsequently served a summons and complaint which alleged, inter alia, that a notice of claim had been duly served. In its answer, the city interposed an affirmative defense that the notice of claim did not comply with section 50-e of the General Municipal Law in that it failed to set forth the specific place where the claim allegedly arose. Plaintiff moved to strike the affirmative defense, contending that her notice satisfied the statutory requirements. The city then cross-moved for an order dismissing the complaint on the ground that the notice of claim was defective as a matter of law. Special Term denied the motion and granted the cross motion, thereby dismissing the complaint. This appeal resulted, and we now affirm the dismissal.

The purpose of the statutory notice of claim requirement (General Municipal Law, § 50-e) is to afford the public corporation “an adequate opportunity to investigate the circumstances surrounding the accident and to explore the merits of the claim while information is still readily available” (Teresta v City of New York, 304 NY 440, 443; see, also, O’Brien v City of Syracuse, 54 NY2d 353, 358; Salesian Soc. v Village of Ellenville, 41 NY2d 521, 524). The statute is intended “ ‘to protect a public corporation against stale or unwarranted claims and to enable it to investigate claims timely and efficiently’ ” (Heiman v City of New York, 85 AD2d 25, 27, quoting Twenty-First Ann Report of NY Judicial Conference, 1976, p 286). To that end, the statute requires that the notice set forth “the time when, the place [253]*253where and the manner in which the claim arose” (General Municipal Law, § 50-e, subd 2). We have held that the statutory requirement regarding the recital of the place of occurrence is met where the notice describes the accident location with sufficient particularity to enable defendant to locate the alleged defect and to conduct a proper investigation of the site and otherwise assess the merits of plaintiff’s claim (Evers v City of New York, 90 AD2d 786; see, also, Faubert v City of New York, 90 AD2d 509; Campbell v City of New York, 78 AD2d 631). Moreover, we have recognized that claims involving “pothole” and sidewalk defects require even greater particularity (Cruz v City of New York, 95 AD2d 790; Evers v City of New York, supra; see, also, Schwartz v City of New York, 250 NY 332; Matter of Klobnock v City of New York, 80 AD2d 854; Rozell v City of New York, 271 App Div 832), because of their transitory nature (McKie v City of New York, 79 AD2d 901).

Measured by these standards, the notice of claim in the case at bar was plainly inadequate. The notice was utterly silent regarding causation, i.e., the nature of the defect which allegedly caused plaintiff to fall, and that fact alone made it impossible for the city to conduct its investigation (see Matter of Raczy v County of Westchester, 95 AD2d 859). This inadequacy was compounded by reason of plaintiff’s failure to describe the location of the occurrence with sufficient particularity. The sufficiency of the description is to be determined by the circumstances of each case (Schwartz v City of New York, supra, p 335). Manifestly, the mere statement in the instant notice that the incident occurred on “the public roadway at the intersection of Queens Boulevard and Woodhaven Boulevard”, a major intersection, was too vague to enable the city to locate the alleged defect. Plaintiff at least should have given the direction and approximate distance of the alleged defect from a specified corner of the intersection or otherwise described its location in such manner as to assure that the city could locate it with reasonable certainty and without conjecture (see Matter of Klobnock v City of New York, supra; cf. Evers v City of New York, supra).

Plaintiff asserts, however, that even if her notice of claim failed to describe the site of the accident with the required specificity, such deficiency in her notice should be disregarded by reason of the fact that the city had actual knowledge of the incident giving rise to the claim. In determining the validity of this argument, we must consider the provisions of subdivision 6 of section 50-e of the General Municipal Law, which provides: [254]*254“6. Mistake, omission, irregularity or defect. At any time after the service of a notice of claim and at any stage of an action or special proceeding to which the provisions of this section are applicable, a mistake, omission, irregularity or defect made in good faith in the notice of claim required to be served by this section, not pertaining to the manner or time of service thereof, may be corrected, supplied or disregarded, as the case may be, in the discretion of the court, provided it shall appear that the other party was not prejudiced thereby.”

This provision makes clear that a mistake, omission, irregularity or defect in a notice of claim may be corrected, supplied or disregarded only where the court determines that two conditions have been met. First, the mistake, omission, irregularity or defect must have been made in good faith, and second, it must appear that the public corporation was not prejudiced thereby (see Nouri v City of New York, 90 AD2d 745). In the present case, there is no contention, and nothing in the record to suggest, that the notice of claim was prepared and served in bad faith. Thus, our determination must turn on the question of whether the city was prejudiced by the lack of specificity in the notice of claim. Plaintiff contends that there was no prejudice, inasmuch as the city received knowledge of the specifics of her claim within a reasonable time after it arose. Specifically, plaintiff maintains that the city acquired such knowledge by reason of (1) her testimony at a Comptroller’s hearing (see General Municipal Law, §'50-h), (2) her bill of particulars and (3) the fact that a New York City police officer prepared and filed an aided report on the date of the incident.

According to her notice of claim, plaintiff was injured on January 27, 1979. On January 28, 1980, she was examined at the Comptroller’s hearing.

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Bluebook (online)
105 A.D.2d 251, 483 N.Y.S.2d 401, 1984 N.Y. App. Div. LEXIS 20695, Counsel Stack Legal Research, https://law.counselstack.com/opinion/caselli-v-city-of-new-york-nyappdiv-1984.