Minkoff v Jekyll & Hyde Inc.2013 NY Slip Op 31456(U)

July 9, 2013Supreme Court, New York County

Docket Number: 101560/11Judge: Michael D. Stallman

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SCANNED ON 711112013

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY

PRESENT: Hon. MICHAEL D. STALLMAN Justice

Index Number : 101 560/2011 MINKOFF, ELAINE

CITY OF NEW YORK SEQUENCE NUMBER : 002 COMPEL DISCLOSURE

vs.

PART 21

INDEX NO. 101560/1 1

MOTION DATE 4/25/13

MOTION SEQ. NO. 002

The following papers, numbered 1 to 9 were read on this motion for leave to amend; motion to dismiss

Notice of Motion- Affirmation - Exhibits A-L-Affidavit of Service

Affirmation in Opposition - Exhibits A-C -Affirmation of Service;

I N W . 1-3

I NO@). 4-5; 6-7 Affirmation in Reply [sic] - Exhibits A-D -Affirmation of Service

Affirmation in Further Support -Affidavit of Service 1 No@). 8-9

Upon the foregoing papers, plaintiff's motion to compel is decided in accordance with the annexed memorandum decision and order.

Dated:

................................................................ 1. Check one: 0 CASE DISPOSED NON-FINAL DISPOSITION 2. Check if appropriate: ............................ MOTION IS: 0 GRANTED DENIED 0 GRANTED IN PART 0 OTHER 3. Check if appropriate: ................................................ 0 SETTLE ORDER 0 SUBMIT ORDER

0 DO NOT POST 0 FfDUClARY APPOINTMENT [? REFERENCE

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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 21

Plaintiff,

- against - Index No. 101560/2011

JEKYLL & HYDE INC., JEKYLL AND HYDE CLUB NEW YORK, LLC, 160 ASSOCIATES L.P., A NEW YORK LIMITED PARTNERSHIP, P & J REALTY LLC, THE CITY OF NEW YORK and THE NEW YORK CITY TRANSIT AUTHORITY,

Decision and Order

HON. MICHAEL D. STALLMAN, J.: JUL 11 2013

In this action, plaintiff claims that, on SeptedMl#UYP#KLO, she tribped and fell

on a raised sidewalk in front of the Jekyll & Hyde restaurant, -which is located at 9 1 C Q U N N c t E R I C s ~ O ~

Seventh Avenue South. However, the notice of claim, the summons and complaint

and bill of particulars filed under this index number, allege that the location of

plaintiffs accident was 9 1 Seventh Avenue.' 9 1 Seventh Avenue South is located in

Greenwich Village; 9 1 Seventh Avenue is in Chelsea.

Plaintiff originally commenced a separate action against defendants Jekyll & Hyde Inc., Jekyll and Hyde Club New York, LLC, and others under index number 1021 11/20 1 1. (Palillo Affirm. dated Aug. 13,2012, Ex D.) In the supplemental summons and amended complaint filed under that index number, the alleged location of the accident was 9 1 Seventh Avenue South. (Palillo Affirm. dated Aug. 13,2012, Ex E.) By decision and order dated February 2012 (Mendez, J.), both actions were consolidated under the index number of this action.

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Plaintiff moves for an order compelling defendants City of New York and the

New York City Transit Authority (NYCTA) to comply with plaintiffs notice to

produce for discovery and inspection dated March 18,20 1 1 (Motion Seq. No. 002).

Plaintiff also moves for leave to amend her notice of claim, the pleadings, and

the bill of particulars to change the location of her alleged accident from 91 Seventh

Avenue to 91 Seventh Avenue South (Motion Seq. No. 003). The NYCTA does not

oppose plaintiffs motion.

The City moves to dismiss the action, on the ground that plaintiff failed to

comply with General Municipal Law 5 50-e (2). The City argues that the incorrect

accident location prevented the City from conducting a proper investigation, and

irreparably prejudiced the City’s defense. Plaintiff opposes the City’s motion; the

NYCTA did not oppose the City’s motion.

This decision addresses both motions and the City’s cross motion.

DISCUSSION

“General Municipal Law $ 50-e ( 2 ) requires written notice, ‘sworn to by or on behalf of the claimant,’ which sets forth ‘the name and post-office address of each claimant, and of his attorney, if any,’ ‘the nature of the claim,’ ‘the time when, the place where and the manner in which the claim arose’ and ‘the items of damage or injuries claimed to have been sustained so far as then practicable.’ As we have explained,

‘[tlhe test of the sufficiency of a Notice of Claim is merely whether it includes information sufficient to enable the city

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to investigate .. . . Thus, in determining compliance with the requirements of General Municipal Law 6 50-e, courts should focus on the purpose served by a Notice of Claim: whether based on the claimant’s description municipal authorities can locate the place, fix the time and understand the nature of the [claim]’ (Brown v. City of New York, 95 N.Y.2d389,393,718N.Y.S.2d4,740N.E.2d 1078 [2000] [internal quotation marks and citations omitted] ).

Put another way, the ‘plain purpose’ of statutes requiring pre-litigation notice to municipalities ‘is to guard them against imposition by requiring notice of the circumstances ... upon which a claim for damages is made, so that its authorities may be in a position to investigate the facts as to time and place, and decide whether the case is one for settlement or litigation’ [citation omitted] .”

(Rosenbaum v City of New York, 8 NY3d 1, 10- 1 1 [2006] .)

“In passing on the sufficiency of a notice of claim in the context of a motion to dismiss, courts are not confined to the notice of claim itself The relevant inquiry is set forth in General Municipal Law fj 50-e(6), which provides that ‘a mistake, omission, irregularity or defect made in good faith * * * may be corrected, supplied or disregarded, as the case may be, in the discretion of the court, provided it shall appear that the other party was not prejudiced thereby.’ In making this determination of prejudice, the court may look to evidence adduced at a section 50-h hearing, and to such other evidence as is properly before the court.”

(D’Alessandro v New York City Tr. Auth., 83 NY2d 89 1,893 [ 19941 [notice of claim

did not identify bus or bus driver involved]; Portillo v New York City Tr. Auth., 84

AD3d 535, 536 [lst Dept 20111 [defendant claimed the notice of claim failed to

specifL the location of the accident].) However, “the statute only ‘authorizes the

correction of good faith, nonprejudicial, technical defects or omissions, not

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substantive changes in the theory of liability”’ (Van Buren v New York City TK Auth.,

95 AD3d 604 [lst Dept 20121.)

Here, the notice of claim addressed to the City and to the NYCTA contained

an omission in the address for the location of the accident. That is, the notice of claim

stated that location was “9 1 7th Avenue” instead of “9 1 7‘h Avenue S (or South).”

However, the notice of claim included photographs depicting the alleged sidewalk

defect. (Palillo Affirm. dated Dec. 6, 2012, Ex A.) In one of the photographs, the

Jekyll and Hyde restaurant clearly appears in the background. (See id.) It appears

undisputed that the photographs depict the claimed location, i.e., 9 1 Seventh Avenue

South.

Plaintiff also appeared at a 50-h hearing on February 2, 201 1. At the 50-h

hearing, plaintiff testified that her accident occurred “On 7th Avenue” in Manhattan,

in front of a restaurant. (Palillo Affirm. dated Dec. 6,2012, Ex C [50-h Hearing Tr.],

at 11 .) When asked if she knew the name of the restaurant, plaintiff answered,

“Bonnie and Clyde - I think it is Jekyll and Hyde.” (Id. at 22.) At her statutory

hearing before NYCTA, plaintiff testified that she tripped and fell in front of the

Jekyll and Hyde restaurant. (Palillo Affirm. dated Dec. 6, 2012, Ex D [Statutory

Hearing Tr.], at 12.)

The Court agrees with plaintiff that the photographs attached to the notice of

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claim, as well as plaintiffs testimony at the 50-h hearing and the statutory hearing,

cured the omission in the address for the location of the accident described in the

notice of claim. The Jekyll & Hyde restaurant is a known tourist attraction in New

York City, which plaintiff asserts is world-famous. The omission was non-

prejudicial. The City could have easily verified the address in relation to that of the

Jekyll and Hyde establishment. With minimal investigation, such as checking the

address of the Jekyll and Hyde restaurant, the City should have realized from the

photographs and plaintiffs testimony that the address given in the notice of claim

omitted “South” from the address of location of plaintiffs alleged accident.

As the City indicates, plaintiff is seeking leave to amend the notice of claim

more than two years after the alleged accident occurred. However, as discussed

above, General Municipal Law 5 50-e (6) pernits amendments to correct non-

prejudicial omissions “at any stage of an action or special proceeding.” The City did

not demonstrate prejudice as a result of the omission.

“Prejudice is established where a municipal defendant is ‘able to show that it

actually conducted a timely investigation at the wrong site due to the erroneous

description.”’ (Rodriguez v City of New York, 38 AD3d 268, 269 [lst Dept 20071,

citing WiZZiarns v City of New York, 229 AD2d 1 14 [ lst Dept 19971.) The City does

not claim that it had conducted an investigation at 9 1 Seventh Avenue. If the City had

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sent an investigator to the address stated in the notice of claim, the City’s

investigator would have realized that the address would not have matched up with the

location depicted in the photographs.

Moreover, the original inclusion of the photographs of the site at 91 Seventh

Avenue South both verifies the accident location as plaintiff intended to allege it, and

demonstrates that plaintiff is not now attempting to “move the accident.”

Therefore, pursuant to General Municipal Law 5 50-e (6), plaintiff is granted

leave to amend to amend the notice of claim to correct the location of the accident to

“9 1 Seventh Avenue South”, and the City’s cross motion to dismiss the complaint is

denied.

Plaintiff is also granted leave to amend the pleadings and the bill of particulars

to amend‘the location of the alleged accident. “Leave to amend pleadings is freely

given absent prejudice or surprise.” (360 West I l th LLC v ACG Credit Co. 14 LLC,

90 AD3d 552, 553 [ 1st Dept 201 11 [internal citations omitted]). Although the City

claims prejudice,

“The showing of prejudice that will defeat a motion for leave to amend must be traced right back to the omission from the original pleading of whatever it is that the amended pleading wants to add-some special right lost in the interim, some change of position or some significant trouble or expense that could have been avoided had the original pleading contained what the amended one now wants to add.”

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(Acevedo v Holton, 239 AD2d 194,195 [ 1 st Dept 19971 [citation and quotation marks

omitted].) The prejudice that the City is claiming is based on the address of the

location in the notice of claim, and the Court rejected the City’s argument that the

incorrect address in the notice of claim resulted in prejudice to the City. The City

does not claim any prejudice separately resulting from granting leave to amend the

pleadings.

Turning to plaintiffs motion to compel the City and the NYCTA to respond

to plaintiffs notices to produce dated March 18, 201 1, the motion is denied as

academic. The City and the NYCTA have responded to plaintiffs discovery

demands. (See Shin Opp. Affirm., Exs B, C; O’Connor Affirm., Ex A.) The

adequacy of the City’s and the NYCTA’s responses, including their objections, were

not the subject of this motion. However, plaintiff may raise that issue at the next

discovery conference, if any discovery demand remains outstanding. It appears that

the City’s sidewalk search was done for the address 9 1 Seventh Avenue instead of 9 I

Seventh Avenue South (Shin Opp. Affirm., Ex C), but this search was completed

before plaintiff sought leave to correct the address of the location in the notice of

claim.

CONCLUSION

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Accordingly, it is hereby

ORDERED that plaintiffs motion for an order compelling defendants City of

New York and the New York City Transit Authority (NYCTA) to comply with

plaintiffs notice to produce for discovery and inspection dated March 18, 201 1

(Motion Seq. No. 002) is denied; and it is further

ORDERED that plaintiffs motion for leave to amend her notice of claim, the

pleadings, and the bill of particulars to change the location of her alleged accident

from 91 Seventh Avenue to 9 1 Seventh Avenue South is granted, and plaintiff shall

serve the amended notice(s) of claim, amended pleadings, and amended bill of

particulars within 45 days of entry of this decision; and it is further

ORDERED that the cross motion by defendant City of New York is denied.

Copies to counsel.'

Dated: July? ,2013 ENTER: New kork, New York

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