Davis v. New York City Transit Authority

234 A.D.2d 153, 651 N.Y.S.2d 31, 1996 N.Y. App. Div. LEXIS 12547

Opinion

—Order, Supreme Court, New York County (Richard Lowe, III, J.), entered on or about October 12, 1995, which denied plaintiff’s motion to amend his notice of claim, complaint and bill of particulars so as to correct the date on which he allegedly slipped and fell on an accumulation of paper handouts in a subway station, and granted defendant Transit Authority’s cross motion to dismiss the complaint as against it, unanimously affirmed, without costs.

We agree with the IAS Court that plaintiff’s five-year delay in seeking to amend the original notice of claim to reflect the correct date of the accident, together with the repetition of the erroneous date in his complaint, bill of particulars and testimony at the statutory hearing and deposition, frustrated defendant’s ability to interview witnesses timely about the alleged accumulation of litter on the subway platform on the day of the accident and otherwise prejudiced defendant’s ability to investigate (see, Rodriguez v City of New York, 223 AD2d 536, lv denied 88 NY2d 811; Aviles v City of New York, 202 AD2d 530, Iv denied 84 NY2d 813; Mercado v City of New York, 208 AD2d 910). Concur—Rosenberger, J. P., Ellerin, Wallach, Tom and Mazzarelli, JJ.