Fitzgibbon v. County of Nassau

Appellate Division of the Supreme Court of New York

Fitzgibbon v. County of Nassau

112 A.D.2d 266, 491 N.Y.S.2d 715, 1985 N.Y. App. Div. LEXIS 56065

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

DecidedJuly 15, 1985

StatusPublished

Cited by6 cases

This text of 112 A.D.2d 266 (Fitzgibbon v. County of Nassau) 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

Fitzgibbon v. County of Nassau, 112 A.D.2d 266, 491 N.Y.S.2d 715, 1985 N.Y. App. Div. LEXIS 56065 (N.Y. Ct. App. 1985).

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Opinion

In a negligence action to recover damages for personal injuries, plaintiff appeals from an order of the Supreme Court, Nassau County (Roncallo, J.), dated April 11, 1984, which denied his motion for leave, inter alia, to serve an amended complaint.

Order reversed, as an exercise of discretion, without costs or disbursements, and motion granted. Plaintiff’s time to serve [267]*267his amended complaint is extended until 20 days after service upon him of a copy of the order to be made hereon, with notice of entry.

Plaintiff has complied with the substantive notice of claim requirements set forth in General Municipal Law § 50-e, but the original complaint failed to plead compliance (see, General Municipal Law § 50-i; Pretino v Wolbern, 84 AD2d 830). Although the motion to amend the complaint was initiated more than one year and 90 days after the cause of action accrued, in the absence of any demonstrable prejudice to defendants it was an abuse of discretion to deny plaintiff’s application to amend his complaint to plead the necessary compliance with General Municipal Law §§ § 50-e, 50-i (see, Murray v City of New York, 43 NY2d 400; Wyso v City of New York, 91 AD2d 661; Kelly v Kane, 98 AD2d 861; Snyder v Board of Educ., 42 AD2d 912). Lazer, J. P., Gibbons, Thompson and Kunzeman, JJ., concur.

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In a negligence action to recover damages for personal injuries, plaintiff appeals from an order of the Supreme Court, Nassau County (Roncallo, J.), dated April 11, 1984, which denied his motion for leave, inter alia, to serve an amended complaint.

Order reversed, as an exercise of discretion, without costs or disbursements, and motion granted. Plaintiff’s time to serve [267]*267his amended complaint is extended until 20 days after service upon him of a copy of the order to be made hereon, with notice of entry.

Plaintiff has complied with the substantive notice of claim requirements set forth in General Municipal Law § 50-e, but the original complaint failed to plead compliance (see, General Municipal Law § 50-i; Pretino v Wolbern, 84 AD2d 830). Although the motion to amend the complaint was initiated more than one year and 90 days after the cause of action accrued, in the absence of any demonstrable prejudice to defendants it was an abuse of discretion to deny plaintiff’s application to amend his complaint to plead the necessary compliance with General Municipal Law §§ § 50-e, 50-i (see, Murray v City of New York, 43 NY2d 400; Wyso v City of New York, 91 AD2d 661; Kelly v Kane, 98 AD2d 861; Snyder v Board of Educ., 42 AD2d 912). Lazer, J. P., Gibbons, Thompson and Kunzeman, JJ., concur.

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Bluebook (online)

112 A.D.2d 266, 491 N.Y.S.2d 715, 1985 N.Y. App. Div. LEXIS 56065, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fitzgibbon-v-county-of-nassau-nyappdiv-1985.

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