Wednesday, April 20, 2016

A motion for leave to serve an amended notice of claim.

Practice point:  The Appellate Division found that the Supreme Court improvidently exercised its discretion in denying the plaintiff's motion for leave to serve an amended notice of claim, and reversed.  The Appellate Division found nothing in the record to suggest that the plaintiff acted in bad faith or attempted to change the location of her fall, as she gave a consistent description of the location of her fall in her notice of claim, in her testimony at the General Municipal Law § 50-h hearing held pursuant to,  and in her complaint. When the plaintiff served the defendant with a notice of claim, she attached a photograph of the accident-site. When she moved for leave to amend, she attached additional photographs which depicted the same intersection viewed from different angles. If there were any inconsistency between the original description of the location of the plaintiff's fall and the description provided in the amended notice of claim, it did not prejudice the defendant.

Student note:  A notice of claim must state the time when, the place where and the manner in which the claim arose.  Its purpose is to afford the public corporation an adequate opportunity to investigate the circumstances surrounding the accident and to explore the merits of the claim while information is still readily available. The statutory requirements are met when the notice describes the accident with sufficient particularity so as to enable the defendant to conduct a proper investigation thereof and to assess the claim's merits. A court may, in its discretion, allow a mistake, irregularity, or defect in the notice to be corrected as long as that mistake, irregularity, or defect was made in good faith and the public corporation was not prejudiced thereby.

Case: Avery v. New York City Tr. Auth., NY Slip Op 02770 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  A livery cab, an accident, and summary judgment.