Practice point: Plaintiff's decedent was allegedly injured when she tripped and fell
after stepping into a 20-foot-long depressed area in the street, which
was about 25 to 30 feet from a subway exit in Union Square Park. The notice of claim mistakenly described the location of a
subway exit as between 16th and 17th Streets on Union Square East,
rather than Union Square West. However, at the statutory hearing held
approximately eight months after the accident, plaintiff correctly
stated that the accident occurred in the location shown in a photograph
of a Union Square subway exit with no canopy, amid a farmer's market, by
a 16th Street sign. Plaintiff also submitted information obtained from
the Internet showing that the other two subway exits in Union Square
Park are covered by canopies and are located well south of 16th Street.
Under these circumstances, plaintiff was allowed to
correct the notice of claim pursuant to General Municipal Law § 50-e(6),
since the mistake was not made in bad faith and defendant was not
prejudiced by the defective notice.
Student note: Defendant failed to meet its burden of showing
prejudice, because the record does not indicate that it sent anyone to
investigate the scene of the accident either before or after the correct
location had become apparent.
Case: Ciarvino v. City of New York, NY Slip Op 06775 (1st Dept. 2013).
Here is the decision.
Tomorrow's issue: Judicial estoppel.
