Olivera v. City of New York

270 A.D.2d 5, 704 N.Y.S.2d 42, 2000 N.Y. App. Div. LEXIS 2266

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 2, 2000
• Status: Published

Opinion

—Order, Supreme Court, Bronx County (Gerald Esposito, J.), entered April 5, 1999, which, in an action for personal injuries sustained in a collision between the parties’ motor vehicles, inter alia, denied plaintiff’s motion for leave to serve a late notice of claim, or, in the alternative, to amend his previously filed notice of claim for property damages so as to include a claim for personal injuries, and granted defendant City’s cross motion to dismiss the complaint, unanimously affirmed, without costs.

Assuming arguendo that plaintiff’s application was timely, we affirm on substantive grounds. Plaintiff served a notice of claim that, while timely, indicates property damage only, and the police report on which plaintiff relies, while providing his name and address and indicating that he was injured, does not describe either the nature or severity of his injuries or indicate that he was removed from the accident scene by ambulance to a City hospital. To adopt plaintiffs position that such circumstances gave defendant timely actual notice of the facts constituting his claim would be to substitute police reports for notices of claim in every instance, mandate that defendant investigate every possible cause of action that might be suggested in an accident report, disregard the prejudice caused by the lost opportunity to conduct a prompt investigation, and “effectively vitiate the protections afforded public corporations by [General Municipal Law § 50-e]” (Caselli v City of New York, 105 AD2d 251, 256).

Nor can the personal injury claim be asserted by way of amendment of the timely property damage notice of claim. General Municipal Law § 50-e (6) permits amendment to a notice of claim to correct a mistake or omission made in good faith, provided the public corporation is not prejudiced. An amendment that would alter the substantive nature of the claim, such as this, does not fall within the statute’s purview (see, Steinberg v Village of Garden City, 247 AD2d 463). Concur — Sullivan, P. J., Rosenberger, Wallach and Andrias, JJ.