Gatewood v. Poughkeepsie Housing Authority

Apr 11, 2006
Versions:28 A.D.3d 515
813 N.Y.S.2d 203

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Pagones, J.), dated September 28, 2005, which granted the motion of the defendant Poughkeepsie Housing Authority to dismiss the complaint and denied her cross motion for leave to serve an amended notice of claim pursuant to General Municipal Law § 50-e (6).

Ordered that the order is reversed, on the facts and as a matter of discretion, with costs, the motion is denied, the complaint is reinstated, the cross motion is granted, and the plaintiff‘s time to serve an amended notice of claim is extended until 20 days after service upon her of a copy of this decision and order.

General Municipal Law § 50-e (6) authorizes a court, in its discretion, to grant leave to serve an amended notice of claim where the error in the original notice of claim was made in good faith, and where the other party has not been prejudiced thereby. There is no allegation that the error in setting forth the accident date in the original notice of claim was made in bad faith and, in any event, the plaintiff corrected the error at her hearing pursuant to General Municipal Law § 50-h (see Power v Manhattan & Bronx Surface Operating Auth., 16 AD3d 655 [2005]). Moreover, the respondent did not demonstrate any actual prejudice, and the record discloses no basis to presume the existence of prejudice. Accordingly, the Supreme Court improvidently exercised its discretion in granting the motion of the defendant Poughkeepsie Housing Authority to dismiss the complaint and in denying the plaintiff‘s cross motion for leave to serve an amended notice of claim (see Matter of Puzio v City of New York, 24 AD3d 679 [2005]; Power v Manhattan & Bronx Surface Operating Auth., supra; Lin v City of New York, 305 AD2d 553 [2003]; Matter of Berko v City of New York, 302 AD2d 594, 595 [2003]; Rosetti v City of Yonkers, 288 AD2d 287 [2001]).

Adams, J.P., Ritter, Goldstein and Covello, JJ., concur.