Practice point: In this trip and fall action, plaintiff's notice of claim listed the
wrong street address (390 Central Park West rather than 360 Central Park
West) in describing the location of her fall on a sidewalk, adjacent to
Central Park, and across the street from that address. However,
plaintiff also annexed a photograph to the notice of claim which
depicted the intersection of Central Park West and 96th Street, which is
nearly four blocks south of the incorrect address provided in the
notice of claim, and the written description of the location in the
notice was consistent with the area depicted in the photograph.
Moreover, at the statutory hearing held six weeks after the notice was
served, and three and a half months after the accident, plaintiff
explicitly testified that her accident occurred on the sidewalk just a
few car lengths south of the 96th Street intersection, and identified
the location in the photograph as also shown. In addition, less
than five months after the hearing, plaintiff served the summons and
complaint, providing the proper street address. Under these
circumstances, the Appellate Division found that the mistake in the notice was not made in
bad faith, nor was it intended to mislead or confuse the City, and so it should have been disregarded or plaintiff should have been
allowed to correct the notice pursuant to GML § 50-e(6).
Student note: Municipalities must put forth at
least a modicum of effort to investigate a notice of claim and to
obtain missing information. Here, defendant never sent anyone to
investigate the scene depicted in the photograph, and did not perform a
computerized record search of the incorrect address until more than two
years after being apprised of the correct location at the hearing.
Although plaintiff served a bill of particulars six months before the
computer search with the same typographical error in the address,
defendant still made no effort to ascertain which of the two locations
was correct. In any event, plaintiff's discovery responses, served
less than one week after this computer search, provided additional
photographs showing the sidewalk defect at issue, and a building awning
with the street number "360" is clearly visible directly across the
street in the background. Moreover, defendant engaged in settlement
discussions just a few months later, during which the actual accident
location was discussed, and did not file the instant motion alleging
confusion as to the accident location until nearly a year and a half
later - one week after entering into a so-ordered stipulation to provide
discovery for the proper location that was explicitly set forth in the
order.
Case: Green v. City of New York, NY Slip Op 03382 (1st Dept. 2013).
Here is the decision.
Monday's issue: Proving personal jurisdiction.
