11 A.D.2d 1015 | N.Y. App. Div. | 1960
Order, entered March 23, 1960, denying plaintiff’s motion for leave to amend her notice of claim and to strike out paragraph “ Third ” of defendant’s answer, unanimously reversed, on the law, on the facts and in the exercise of discretion, with $20 costs and disbursements to appellant, and the motion granted, with $10 costs. The written notice of claim filed by the compensation insurance carrier, which itself had a contingent interest in plaintiff’s cause of action by virtue of subdivisions 1 and 2 of section 29 of the Workmen’s Compensation Law, was sufficient also to constitute a notice of claim made for plaintiff. The city had prompt and timely notice of the plaintiff’s claim so that it could be properly investigated. In fact, the City of New York actually examined plaintiff after the filing of the notice of claim by the insurance carrier. Under the circumstances, the plaintiff should have been permitted pursuant to subdivision 6 of section 50-e of the General Municipal Law to amend the notice of claim, nunc, pro tuno, and the affirmative defense in paragraph “Third” of defendant’s answer, alleging that plaintiff had failed to comply with the provisions of
