Chipurnoi v. Manhattan & Bronx Surface Transit Operating Authority

216 A.D.2d 171, 628 N.Y.S.2d 666, 1995 N.Y. App. Div. LEXIS 6975

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 27, 1995
• Status: Published

Opinion

Appeal from the order of the Supreme Court, New York County (Robert D. Lippmann, J.), entered on August 18,1994, which denied plaintiffs’ motion to amend their bill of particulars, is dismissed as superseded by the appeal from the order of said court entered on November 14,1994, without costs. Order of the Supreme Court, New York County (Robert D. Lippmann, J.), entered on November 14, 1994, which granted plaintiffs’ motion to amend their notice of claim, is unanimously reversed, on the law and the facts, and leave to amend the notice of claim and to amend the bill of particulars is denied, without costs.

In this negligence action, the court improperly granted leave to amend the notices of claim. The slippery seat theory, essentially a claim of design defect, was not alluded to in the complaint or in the original notices of claim which asserted only human error and a defect in the steering mechanism. It was first sought to be interposed long after the one year and 90-day limitation had passed (Public Authorities Law § 1212 [2]; General Municipal Law § 50-e [5]; Pierson v City of New York, 56 NY2d 950; Nowinsky v City of New York, 189 AD2d 674, 675). Moreover, this was not the type of omission that may be corrected at any time pursuant to General Municipal Law § 50-e (6) (cf., e.g., Ortiz v New York City Hous. Auth., 214 AD2d 491; Seise v City of New York, 212 AD2d 467).

Since the notices of claim may not be amended, then any proposed amendment to the bill of particulars incorporating the same barred claims would be without merit and the proposed amendment of the bill of particulars must be denied on that ground (see, e.g., Daniels v Empire-Orr, Inc., 151 AD2d 370, 371 [1st Dept 1989]). Concur—Murphy, P. J., Rubin, Kupferman and Mazzarelli, JJ.