Sciolto v. New York City Transit Authority

288 A.D.2d 144, 734 N.Y.S.2d 9, 2001 N.Y. App. Div. LEXIS 11469

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 27, 2001
• Status: Published

Opinion

—Order, Supreme Court, New York County (Eileen Bransten, J.), entered June 8, 2000, which denied defendant’s motion to dismiss Peter Sciolto’s claims for loss of services and loss of consortium for failure to file a timely notice of claim, and which granted plaintiffs’ cross motion to serve an amended notice of claim to include such causes of action, unanimously affirmed, without costs.

Plaintiffs neglected to include the derivative claim for loss of consortium and loss of services in their original notice of claim, but did include such causes of action in their complaint. Thus, the court properly allowed plaintiffs to amend the notice of claim to include the derivative claims inadvertently omitted from the original notice. Defendant suffered no prejudice, since it received actual notice of the claim in plaintiffs’ complaint (see, General Municipal Law § 50-[6]; Burgarella v City of New York, 265 AD2d 361; Dodd v Warren, 110 AD2d 807). This Court’s holding in Watson v New York City Tr. Auth. (269 AD2d 162) is not to the contrary, since the plaintiff therein deliberately omitted the derivative claim of loss of consortium from the complaint, and he never moved to amend the notice of claim pursuant to General Municipal Law § 50-e (6). Concur— Andrias, J. P., Wallach, Lerner, Rubin and Buckley, JJ.