MOTION TO AMEND "NOTICE OF CLAIM" AGAINST N.Y.C. HOUSING AUTHORITY TO CHANGE THEORY OF REASON FOR SLIP-AND-FALL ACCIDENT DENIED

Case: Donaldson v. New York City Housing Authority

Court: Supreme Court, Appellate Division, First Department, New York

Date: January 24, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens injury attorney)

Comment: This accident happened when plaintiff slipped and fell on a sidewalk outside a New York City Housing Authority building. To sue the New York City H.A. a "notice of claim" describing the accident has to be filed within 90 days of the accident. This rule is meant to give the Housing Authority (or any municipal entity) a chance for an early investigation.

In this case, the accident victim tried to change the theory of the accident after the 90 days passed and that's why this motion was brought. The court denied the plaintiff's motion, leaving the case hanging around and, I guess, waiting for an eventual defense summary judgment motion as a sort of "mercy killing."

Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered October 6, 2010, which, in an action for personal injuries, granted plaintiff's motion for leave to amend the notice of claim, unanimously reversed, on the law and the facts, without costs, and the motion denied.

Leave to amend the notice of claim pursuant to General Municipal Law Sec. 50-e(6) was improperly granted since the statute only "authorizes the correction of good faith, nonprejudicial, technical defects or omissions, not substantive changes in the theory of liability" (Scott v. City of New York, 40 AD3d 408, 410 [2007]). Plaintiff's proposed amendment impermissibly sought to change the theory of liability from a slip and fall on the sidewalk outside defendant's building due to an accumulation of snow/ice, to a slip and fall due to a wet metal weather strip located on the threshold of the building's front door (see Santana v. New York City Tr. Auth., 88 AD3d 539 [2011]; Torres v. New York City Hous. Auth., 261 A.D.2d 273 [1999], lv denied 93 N.Y.2d 816 [1999]). Moreover, the prejudice to defendant is apparent inasmuch as the original notice of claim was insufficient to allow defendant to conduct a meaningful investigation of plaintiff's amended claim (see Santana at 540).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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