Fitzgibbon v. County of Nassau

Jul 15, 1985
Versions:112 A.D.2d 266
491 N.Y.S.2d 715
1985 N.Y. App. Div. LEXIS 56065

In a negligence action to recover damages for personal injuries, plaintiff appeals from an order of the Supreme Court, Nassau County (Roncallo, J.), dated April 11, 1984, which denied his motion for leave, inter alia, to serve an amended complaint.

Order reversed, as an exercise of discretion, without costs or disbursements, and motion granted. Plaintiff’s time to serve *267his amended complaint is extended until 20 days after service upon him of a copy of the order to be made hereon, with notice of entry.

Plaintiff has complied with the substantive notice of claim requirements set forth in General Municipal Law § 50-e, but the original complaint failed to plead compliance (see, General Municipal Law § 50-i; Pretino v Wolbern, 84 AD2d 830). Although the motion to amend the complaint was initiated more than one year and 90 days after the cause of action accrued, in the absence of any demonstrable prejudice to defendants it was an abuse of discretion to deny plaintiff’s application to amend his complaint to plead the necessary compliance with General Municipal Law §§ § 50-e, 50-i (see, Murray v City of New York, 43 NY2d 400; Wyso v City of New York, 91 AD2d 661; Kelly v Kane, 98 AD2d 861; Snyder v Board of Educ., 42 AD2d 912). Lazer, J. P., Gibbons, Thompson and Kunzeman, JJ., concur.