Jones v. New York City Housing Authority

178 A.D.2d 284

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 17, 1991
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Bertram Katz, J.), entered June 21, 1991, which granted plaintiffs’ motion for leave to amend their notice of claim and to conform the pleadings to the proof to reflect the date of the occurrence as July 18, 1989, and deemed the proposed amended notice of claim served upon the defendant nunc pro tunc, unanimously affirmed, without costs.

General Municipal Law § 50-e (6) allows a good faith mistake, omission, irregularity or defect in the notice of claim to be corrected at any stage of an action or proceeding, provided "it shall appear that the other party was not prejudiced thereby.” We find no basis to disturb the motion court’s exercise of discretion in allowing plaintiffs to amend their notice of claim so as to reflect the true date of the accident. On July 18, 1989, the infant plaintiff fell from the bars of a playground apparatus owned and operated by defendant New York City Housing Authority. The original notice of claim, which was timely filed, subsequent pleadings and plaintiff’s verified bill of particulars erroneously noted the date of the accident as July 15, 1989, three days prior to the actual date, an error that was brought to plaintiffs’ attention in or about March 1990, after defendant’s counsel noticed a discrepancy in the medical records. Clearly, plaintiff’s error was due to a good faith mistaken belief as to the actual date of the accident. Defendant’s claim of prejudice is conjectural at best, and, in any event, belied by the deposition testimony of its employee, the supervisor and groundskeeper of the playground, that he maintained a record of work, maintenance and other repairs to the area and equipment in question for the entire month of July 1989, which would cover the three-day period between the actual date of the occurrence and the date mentioned in the notice of claim. Concur—Milonas, J. P., Asch, Kassal, Smith and Rubin, JJ.