Ortiz v. New York City Housing Authority

Appellate Division of the Supreme Court of New York

Ortiz v. New York City Housing Authority

214 A.D.2d 491, 625 N.Y.S.2d 541, 1995 N.Y. App. Div. LEXIS 4620

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

DecidedApril 27, 1995

StatusPublished

Cited by7 cases

This text of 214 A.D.2d 491 (Ortiz 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

Ortiz v. New York City Housing Authority, 214 A.D.2d 491, 625 N.Y.S.2d 541, 1995 N.Y. App. Div. LEXIS 4620 (N.Y. Ct. App. 1995).

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Opinion

—Order, Supreme Court, Bronx County (Luis A. Gonzalez, J.), entered April 22, 1994, denying plaintiff’s motion to amend her notice of claim and granting defendant’s motion for summary judgment dismissing the complaint, unanimously reversed, on the law and on the facts and in the exercise of discretion, without costs or disbursements, the motion to amend the notice of claim granted and defendant’s motion for summary judgment denied.

Plaintiff’s notice of claim, in this sidewalk fall case, misdescribed the place of occurrence as "the sidewalk between 255 Willis Avenue and 175-177 Willis Avenue, Bronx, New York, [492]*492directly west from the southeast corner of Willis Avenue and East 137th Street, Bronx, New York,” when, in fact, the accident occurred between 225 Willis Avenue and 175-177 Willis Avenue. The address 255 Willis Avenue is not within defendant Housing Authority’s project. The defect alleged was a hole, which apparently had formerly been the receptacle for a four-foot high pole. In our view, it was an abuse of discretion to deny plaintiff’s motion to amend the notice to reflect the correct site. The essence of the description of the accident site was the statement that it was directly west of the southeast corner of Willis Avenue and 137th Street, not that it was between two addresses, which, in fact, were over two blocks apart. A reading of the transcript of plaintiff’s General Municipal Law § 50-h hearing, conducted four months after the accident, indicates that the Housing Authority was able to identify precisely the site of the accident. Courts will not presume prejudice as a result of an inadvertent error in the notice of claim. (Hoffman v New York City Hous. Auth., 187 AD2d 334, 337.) No prejudice has been shown. Since the defective notice of claim was the only basis for the grant of summary judgment dismissing the complaint, the order should be reversed and the complaint reinstated. Concur—Murphy, P. J., Sullivan, Ellerin, Williams and Mazzarelli, JJ.

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—Order, Supreme Court, Bronx County (Luis A. Gonzalez, J.), entered April 22, 1994, denying plaintiff’s motion to amend her notice of claim and granting defendant’s motion for summary judgment dismissing the complaint, unanimously reversed, on the law and on the facts and in the exercise of discretion, without costs or disbursements, the motion to amend the notice of claim granted and defendant’s motion for summary judgment denied.

Plaintiff’s notice of claim, in this sidewalk fall case, misdescribed the place of occurrence as "the sidewalk between 255 Willis Avenue and 175-177 Willis Avenue, Bronx, New York, [492]*492directly west from the southeast corner of Willis Avenue and East 137th Street, Bronx, New York,” when, in fact, the accident occurred between 225 Willis Avenue and 175-177 Willis Avenue. The address 255 Willis Avenue is not within defendant Housing Authority’s project. The defect alleged was a hole, which apparently had formerly been the receptacle for a four-foot high pole. In our view, it was an abuse of discretion to deny plaintiff’s motion to amend the notice to reflect the correct site. The essence of the description of the accident site was the statement that it was directly west of the southeast corner of Willis Avenue and 137th Street, not that it was between two addresses, which, in fact, were over two blocks apart. A reading of the transcript of plaintiff’s General Municipal Law § 50-h hearing, conducted four months after the accident, indicates that the Housing Authority was able to identify precisely the site of the accident. Courts will not presume prejudice as a result of an inadvertent error in the notice of claim. (Hoffman v New York City Hous. Auth., 187 AD2d 334, 337.) No prejudice has been shown. Since the defective notice of claim was the only basis for the grant of summary judgment dismissing the complaint, the order should be reversed and the complaint reinstated. Concur—Murphy, P. J., Sullivan, Ellerin, Williams and Mazzarelli, JJ.

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Bluebook (online)

214 A.D.2d 491, 625 N.Y.S.2d 541, 1995 N.Y. App. Div. LEXIS 4620, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ortiz-v-new-york-city-housing-authority-nyappdiv-1995.

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