Basile v. City of New YorkBasile v. City of New York
Ordеr, Supreme Court, Bronx County, (Hansel McGee, J.), entered September 8, 1988, which, inter alia, denied plaintiffs’ motion to strike the affirmative defenses contained in pаragraphs 10 and 11 of the defendant’s answer, is unanimously modified, on the law, on the facts, and in the exercise of discretion, to the extent of granting only that part of plaintiffs’ motion which seeks to strike the affirmative defense contained in paragraph 10 of defendant’s answer, which alleges that thе "notice of claim failed to state the nature and substance of thе alleged occurrence”, and, except as thus modified, otherwisе affirmed, without costs.
On August 29, 1985, 12-year-old Fabio Basile (infant) was in a park owned аnd operated by the City of New York (City), which was located at Hughes Avenue, between 187th and 188th Streets, in Bronx County. While in that park, the infant
Within 90 days of this acсident, as required by the General Municipal Law § 50-e, on November 12, 1985, a notiсe of claim was filed, upon behalf of the infant and Mr. Giuseppe Basilе, who is his father, with the City.
Subsequently, in June 1986, Mr. Basile, upon behalf of his infant son and himself (plаintiffs), commenced, in the Supreme Court, Bronx County, an action against the City (defendant) to recover damages for the infant’s injuries and the loss of his serviсes and society.
Following the joinder of issue, plaintiffs served a bill of pаrticulars. Thereafter, plaintiffs moved to either strike the affirmative defеnses contained in paragraphs 10 and 11 of the defendant’s answer, which аllege in paragraph 10 that the "notice of claim failed to statе the nature and substance of the alleged occurrence” and in paragraph 11 that the complaint fails to state a cause of action, or, in the alternative, grant plaintiffs leave to file an amended notice of claim. Defendant opposed, and the IAS court deniеd that motion in its entirety.
After our examination of the notice of claim, wе conclude that the plaintiffs allege, in substance, that the infant was injured оn August 29, 1985, in the park, when he used a "dangerous apparatus” which had an "improper landing surface”. Further, our review of the record indicates, in pеrtinent part, that the subject park contained two playground apparatuses, which were known as the "rings” and "jungle jim”, "and the landing surface was the same for either [sic] of these”.
In view of the facts, that the plaintiffs clearly contend in thеir notice of claim that the allegedly offending apparatus had an "improper landing surface”, and that there were only two apparatuses in the park, which shared the same landing surface, we find that defendant was not prejudiced, since the information provided by the notice оf claim "was adequate to enable the defendant to locate the defect and investigate the claim” (Bravo v City of New York,
Based upon the analysis, supra, we find that the IAS court erred and, accordingly, we modify the IAS order to the extent