Santana v. New York City Transit Authoriy

88 A.D.3d 539, 930 N.Y.2d 587

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 18, 2011
• Status: Published

Opinion

The court should not have granted plaintiffs’ motion for leave to amend the notice of claim pursuant to General Municipal Law § 50-e (6). Flaintiffs did not merely seek to supplement the original claim, but rather, impermissibly sought to change the theory of liability from a fall on the stairs due to snow, ice or slush to a fall due to a loose metal tread (see Torres v New York City Hous. Auth., 261 AD2d 273, 275 [1999], lv denied 93 NY2d [1999]). Moreover, defendant would be prejudiced by the amendment since the original notice of claim was insufficient to allow them to effectively conduct a meaningful investigation of plaintiffs’ amended claim (see id. at 274-275).

In view of the foregoing, we need not reach the merits of plaintiffs’ motion for leave to file a late notice of claim. Concur— Mazzarelli, J.E, Moskowitz, Acosta, Renwick and DeGrasse, JJ.