Frazer v. New York City Housing Authority

Appellate Division of the Supreme Court of New York

Frazer v. New York City Housing Authority

198 A.D.2d 329, 603 N.Y.S.2d 177

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

DecidedNovember 15, 1993

StatusPublished

Cited by3 cases

This text of 198 A.D.2d 329 (Frazer v. New York City Housing Authority) 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

Frazer v. New York City Housing Authority, 198 A.D.2d 329, 603 N.Y.S.2d 177 (N.Y. Ct. App. 1993).

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Opinion

—In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Kings County (I. Aronin, J.), dated August 13, 1991, which denied its motion to dismiss the complaint.

Ordered that the order is reversed, as a matter of discretion in the interest of justice, with costs, and the motion to dismiss the complaint is granted.

The plaintiff was required to serve a notice of claim specifically detailing the time when, the place where and the manner in which the claim arose as a condition precedent to the suit (see, General Municipal Law § 50-e; Krug v City of New York, 147 AD2d 449; Mazza v City of New York, 112 AD2d 921; Caselli v City of New York, 105 AD2d 251). The pretrial testimony given by the plaintiff indicated that the notice of claim which was served did not properly describe the cause of the alleged injury. His testimony gave a description of the occurrence totally different from that contained in the notice of claim which was served on his behalf. The claimed dangerous condition was transitory in nature and the testimony of the plaintiff was given five years after the alleged occurrence. Thus, the municipality was clearly prejudiced, since it was impossible to conduct a further investigation after it was revealed that the notice of claim contained an error. Accordingly, the complaint is dismissed. Mangano, P. J., Balletta, Copertino and Joy, JJ., concur.

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—In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Kings County (I. Aronin, J.), dated August 13, 1991, which denied its motion to dismiss the complaint.

Ordered that the order is reversed, as a matter of discretion in the interest of justice, with costs, and the motion to dismiss the complaint is granted.

The plaintiff was required to serve a notice of claim specifically detailing the time when, the place where and the manner in which the claim arose as a condition precedent to the suit (see, General Municipal Law § 50-e; Krug v City of New York, 147 AD2d 449; Mazza v City of New York, 112 AD2d 921; Caselli v City of New York, 105 AD2d 251). The pretrial testimony given by the plaintiff indicated that the notice of claim which was served did not properly describe the cause of the alleged injury. His testimony gave a description of the occurrence totally different from that contained in the notice of claim which was served on his behalf. The claimed dangerous condition was transitory in nature and the testimony of the plaintiff was given five years after the alleged occurrence. Thus, the municipality was clearly prejudiced, since it was impossible to conduct a further investigation after it was revealed that the notice of claim contained an error. Accordingly, the complaint is dismissed. Mangano, P. J., Balletta, Copertino and Joy, JJ., concur.

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198 A.D.2d 329, 603 N.Y.S.2d 177, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frazer-v-new-york-city-housing-authority-nyappdiv-1993.

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