Jones v. City of New York

Appellate Division of the Supreme Court of New York

Jones v. City of New York

277 A.D.2d 286, 715 N.Y.S.2d 663, 2000 N.Y. App. Div. LEXIS 11697

Appellate Division of the Supreme Court of the State of New York·Decided November 13, 2000·Published·Cited by 6 cases

Opinion

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Richmond County (Mastro, J.), dated October 28, 1999, which denied their motion pursuant to General Municipal Law § 50-e (6) for leave to serve an amended notice of claim and granted the defendant’s cross motion, in effect, to dismiss the action for failure to serve a proper notice of claim.

Ordered that the order is affirmed, with costs.

A court may, in its discretion, grant a motion for leave to serve an amended notice of claim where a mistake was made in good faith and the municipality has not been prejudiced thereby (see, Kaminsky v City of New York, 238 AD2d 380). However, where, as here, a municipality is misled by an erroneous notice of claim to conduct an investigation at the wrong site, this circumstance by itself constitutes “serious prejudice” to the defendant, warranting dismissal of the complaint (Eherts v County of Orange, 215 AD2d 524, 525). Accordingly, the Supreme Court properly dismissed the action. Mangano, P. J., S. Miller, McGinity, Luciano and Smith, JJ., concur.

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—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Richmond County (Mastro, J.), dated October 28, 1999, which denied their motion pursuant to General Municipal Law § 50-e (6) for leave to serve an amended notice of claim and granted the defendant’s cross motion, in effect, to dismiss the action for failure to serve a proper notice of claim.

Ordered that the order is affirmed, with costs.

A court may, in its discretion, grant a motion for leave to serve an amended notice of claim where a mistake was made in good faith and the municipality has not been prejudiced thereby (see, Kaminsky v City of New York, 238 AD2d 380). However, where, as here, a municipality is misled by an erroneous notice of claim to conduct an investigation at the wrong site, this circumstance by itself constitutes “serious prejudice” to the defendant, warranting dismissal of the complaint (Eherts v County of Orange, 215 AD2d 524, 525). Accordingly, the Supreme Court properly dismissed the action. Mangano, P. J., S. Miller, McGinity, Luciano and Smith, JJ., concur.

Jones v. City of New York, 277 A.D.2d 286, 715 N.Y.S.2d 663, 2000 N.Y. App. Div. LEXIS 11697 (N.Y. Ct. App. 2000).

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