Matos v. City of New York

126 A.D.3d 570, 3 N.Y.S.3d 579

Opinion

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered January 17, 2014, which, to the extent appealed from as limited by the briefs, denied plaintiffs motion for leave to serve an amended notice of claim and an amended complaint, and granted defendants’ motions to dismiss the complaint as against them, unanimously affirmed, without costs.

The court properly denied plaintiffs motion to amend the notice of claim pursuant to General Municipal Law § 50-e (6) and to amend the complaint, because plaintiffs inconsistency as to the location of the accident and her failure to move timely to correct the notice of claim prejudiced defendant City’s ability to investigate the incident while the surrounding facts were still fresh (see Rodriguez v City of New York, 38 AD3d 268 [1st Dept 2007]). Plaintiffs vague General Municipal Law § 50-h testimony and the photographs she provided in which she was unable to identify the accident location failed to correct the defect.

The court properly considered defendant Restani’s second motion for summary judgment, having expressly granted Restani leave to renew after discovery. Restani established prima facie that it could not have created the defect in the road that allegedly caused plaintiff to trip and fall, and plaintiff failed to raise an issue of fact in opposition.

Concur — Tom, J.P., Acosta, Andrias, Moskowitz and Kapnick, JJ.