On May 24, 2017 a
Order
was filed
involving a dispute between
Pamela D. Zehner,
and
The City Of New York,
for Torts - Other Negligence (PREMISES)
in the District Court of New York County.
Preview
INDEX NO. 154791/2017
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 09/19/2018
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: Hi ON. VERNA L. SAUNDERS, J.S.C.
PAMELA D. ZEHNER,
IAS MOTION PART 5
Plaintiff,
~ against - 154 7971 (20t7
INDEX NO.
THE CITY OF NEW YORK,
Defendant.
MOT. SEQ. NO. 001
The following papers were read on this motion to/for file an
AMENDED NOTICE OF CLAIM
Notice of Motion/Petition/O.S.C. — Affidavits — Exhibit
s ECFS DOC No(s).__2-6
Notice of Cross-Motion/Answering Affidavits — Exhibits
ECFS DOC No(s).__12
Replying Affidavits
ECFS DOC No(s).__13
Plaintiff, Pamela D. Zehner, moves pursuant to General Munici
pal Law (GML) § 50-e (6)
seeking leave to serve an Amended Notice of Claim to add
the time of the accident and state additional
theories of negligence against defendant City of New York
(“City” ). Plaintiff asserts that in the original
Notice of Claim she omitted the time of the accident and did
not s ufficiently allege all possible negligence
theories to which the incident gave rise. Plaintiff maintains that
the omission was corrected in her 50-h
hearing testimony.
Defendant opposes the motion arguing that the am endmen
ts sought by plaintiff to add theories of
negligence not asserted in the original Notice of Claim coi nstitut
es a substantive change not permitted
under GML § 50-e (6) and further, that even if plainti
ff seeks leave to file a |. late notice of claim pursuant
to GML § 50-e (5), the request should be denied,
GML § 50-e (6) states that “{a]t any time after the servic
e of a notice of claim and at any stage of
an action or special proceeding to which the provisions of
this section are applicable, a mistake, omission,
irregularity or defect made in goo d faith in the notice of clai
im required to be served ... may be corrected,
supplied or disregarded, as the case may be, in the discre
tion of the court, provided it shall appear that the
other party was not prejudiced thereby.”
Here, plaintiff's timely filed Notice of Claim adequately
apprised defendant of the nature and
substance of her negligence claim and was supported by y specif
ic factual allegations. Further, as plaintiff
correctly avers, the proposed amended and/or late Noti
ice of Claim serves only as an amplification of
basic facts previously alleged. Moreover, the City fails
to assert more than a generalized assertion that a
separate investigation need be commence: d without any
articulation of an inability to interview witnesses
or indication as to how the prior investig; ation of the
accident, if any, is rendered insufficient in light of
the proposed amendment. Thus, it is unlikely that the
City will be su bstantially prejudiced in its defense
of this action and the motion is granted. GML § 50-e (5);
Fenton v County of Dutchess, 148 AD2d 573
(2d Dept 1989); Heiman v New York, 85 AD2d 25
(1 Dept 1982). Accordingly, it is hereby
ORDERED that plaintiff is to serve this order with notice
of entry, along with an Amended
Notice of Claim upon respondent within twenty (20)
days of the date hereo: pf.
This constitutes the decision and order of the Court.
Dated: September 14, 2018
HOW. VERNAL. SAUNDERS, J.S.C.
1. Check one: 5 CASE DISPOSED ONONF [AL DISHOSITION
2. Check as appropriate: Motion is GRANTED
5 DEN. G GRANTED IN PART o OTHER
3. Check if appropriate: o SETTLE ORDER o SUBM
IT 0} RDER co DO NOT POST
o FIDUCIARY APPOINTMENT c REFERENCE
lof 1
Document Filed Date
September 19, 2018
Case Filing Date
May 24, 2017
Category
Torts - Other Negligence (PREMISES)
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Preview
INDEX NO. 154791/2017 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 09/19/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: Hi ON. VERNA L. SAUNDERS, J.S.C. PAMELA D. ZEHNER, IAS MOTION PART 5 Plaintiff, ~ against - 154 7971 (20t7 INDEX NO. THE CITY OF NEW YORK, Defendant. MOT. SEQ. NO. 001 The following papers were read on this motion to/for file an AMENDED NOTICE OF CLAIM Notice of Motion/Petition/O.S.C. — Affidavits — Exhibit s ECFS DOC No(s).__2-6 Notice of Cross-Motion/Answering Affidavits — Exhibits ECFS DOC No(s).__12 Replying Affidavits ECFS DOC No(s).__13 Plaintiff, Pamela D. Zehner, moves pursuant to General Munici pal Law (GML) § 50-e (6) seeking leave to serve an Amended Notice of Claim to add the time of the accident and state additional theories of negligence against defendant City of New York (“City” ). Plaintiff asserts that in the original Notice of Claim she omitted the time of the accident and did not s ufficiently allege all possible negligence theories to which the incident gave rise. Plaintiff maintains that the omission was corrected in her 50-h hearing testimony. Defendant opposes the motion arguing that the am endmen ts sought by plaintiff to add theories of negligence not asserted in the original Notice of Claim coi nstitut es a substantive change not permitted under GML § 50-e (6) and further, that even if plainti ff seeks leave to file a |. late notice of claim pursuant to GML § 50-e (5), the request should be denied, GML § 50-e (6) states that “{a]t any time after the servic e of a notice of claim and at any stage of an action or special proceeding to which the provisions of this section are applicable, a mistake, omission, irregularity or defect made in goo d faith in the notice of clai im required to be served ... may be corrected, supplied or disregarded, as the case may be, in the discre tion of the court, provided it shall appear that the other party was not prejudiced thereby.” Here, plaintiff's timely filed Notice of Claim adequately apprised defendant of the nature and substance of her negligence claim and was supported by y specif ic factual allegations. Further, as plaintiff correctly avers, the proposed amended and/or late Noti ice of Claim serves only as an amplification of basic facts previously alleged. Moreover, the City fails to assert more than a generalized assertion that a separate investigation need be commence: d without any articulation of an inability to interview witnesses or indication as to how the prior investig; ation of the accident, if any, is rendered insufficient in light of the proposed amendment. Thus, it is unlikely that the City will be su bstantially prejudiced in its defense of this action and the motion is granted. GML § 50-e (5); Fenton v County of Dutchess, 148 AD2d 573 (2d Dept 1989); Heiman v New York, 85 AD2d 25 (1 Dept 1982). Accordingly, it is hereby ORDERED that plaintiff is to serve this order with notice of entry, along with an Amended Notice of Claim upon respondent within twenty (20) days of the date hereo: pf. This constitutes the decision and order of the Court. Dated: September 14, 2018 HOW. VERNAL. SAUNDERS, J.S.C. 1. Check one: 5 CASE DISPOSED ONONF [AL DISHOSITION 2. Check as appropriate: Motion is GRANTED 5 DEN. G GRANTED IN PART o OTHER 3. Check if appropriate: o SETTLE ORDER o SUBM IT 0} RDER co DO NOT POST o FIDUCIARY APPOINTMENT c REFERENCE lof 1