Caselli v. City of New York

• Decision Date: 31 December 1984
• Citation: 483 N.Y.S.2d 401,105 A.D.2d 251
• Parties: Josephine CASELLI, Appellant, v. The CITY OF NEW YORK, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 401

483 N.Y.S.2d 401

105 A.D.2d 251

Josephine CASELLI, Appellant, v. The CITY OF NEW YORK, Respondent.

Supreme Court, Appellate Division,

Second Department.

Dec. 31, 1984.

Morris J. Eisen, P.C., New York City (Steven DiJoseph and Edward P. Dunphy, New York City, of counsel), for appellant.

Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City (Stephen J. McGrath and Dana Robbins, New York City, of counsel), for respondent.

Before LAZER, J.P., and GIBBONS, BRACKEN and LAWRENCE, JJ.

BRACKEN, Justice.

Subdivision 2 of section 50-e of the General Municipal Law provides, inter alia, that a notice of claim shall set forth "the time when, the place where and the manner in which the claim arose". This appeal raises the question of the degree of specificity required by the statute in setting forth the place of occurrence and also the further question of the extent to which a lack of specificity with respect to such information may be disregarded.

Plaintiff was allegedly injured when she fell while walking across a street intersection located within the City of New York. Plaintiff thereafter timely served a notice of claim upon the city which alleged, inter alia, that she was "crossing the public roadway at the intersection of Queens Boulevard and Woodhaven Boulevard, Borough of Queens, City and State of New York when she was caused to be precipitated to the ground * * * through the carelessness and negligence of the City of New York * * * in the ownership, operation, control, maintenance, repair, and inspection of the pedestrian traffic and roadway and in causing, permitting and allowing a public and private nuisance to be, become and remain at the aforesaid location". The notice contained no further description of the place of occurrence or the manner in which the injuries were allegedly sustained.

Plaintiff subsequently served a summons and complaint which alleged, inter alia, that a notice of claim had been duly served. In its answer, the city interposed an affirmative defense that the notice of claim did not comply with section 50-e of the General Municipal Law in that it failed to set forth the specific place where the claim allegedly arose. Plaintiff moved to strike the affirmative defense, contending that her notice satisfied the statutory requirements. The city then cross-moved for an order dismissing the complaint on the ground that the notice of claim was defective as a matter of law. Special Term denied the motion and granted the cross motion, thereby dismissing the complaint. This appeal resulted, and we now affirm the dismissal.

The purpose of the statutory notice of claim requirement (General Municipal Law, § 50-e) is to afford the public corporation "an adequate opportunity to investigate the circumstances surrounding the accident and to explore the merits of the claim while information is still readily available" (Teresta v. City of New York, 304 N.Y. 440, 443, 108 N.E.2d 397; see, also, O'Brien v. City of Syracuse, 54 N.Y.2d 353, 358, 445 N.Y.S.2d 687, 429 N.E.2d 1158; Salesian Soc. v. Village of Ellenville, 41 N.Y.2d 521, 524, 393 N.Y.S.2d 972, 362 N.E.2d 604). The statute is intended " 'to protect a public corporation against stale or unwarranted claims and to enable it to investigate claims timely and efficiently' " (Heiman v. City of New York, 85 A.D.2d 25, 27, 447 N.Y.S.2d 158, quoting Twenty-First Ann Report of NY Judicial Conference, 1976, p 286). To that end, the statute requires that the notice set forth "the time when, the place where and the manner in which the claim arose" (General Municipal Law, § 50-e, subd. 2). We have held that the statutory requirement regarding the recital of the place of occurrence is met where the notice describes the accident location with sufficient particularity to enable defendant to locate the alleged defect and to conduct a proper investigation of the site and otherwise assess the merits of plaintiff's claim (Evers v. City of New York, 90 A.D.2d 786, 455 N.Y.S.2d 646; see, also, Faubert v. City of New York, 90 A.D.2d 509, 455 N.Y.S.2d 24; Campbell v. City of New York, 78 A.D.2d 631, 432 N.Y.S.2d 107). Moreover, we have recognized that claims involving "pothole" and sidewalk defects require even greater particularity (Cruz v. City of New York, 95 A.D.2d 790, 463 N.Y.S.2d 851; Evers v. City of New York, supra; see, also, Schwartz v. City of New York, 250 N.Y. 332, 165 N.E. 517; Matter of Klobnock v. City of New York, 80 A.D.2d 854, 436 N.Y.S.2d 769; Rozell v. City of New York, 271 App.Div. 832, 65 N.Y.S.2d 864), because of their transitory nature (McKie v. City of New York, 79 A.D.2d 901, 434 N.Y.S.2d 239).

Measured by these standards, the notice of claim in the case at bar was plainly inadequate. The notice was utterly silent regarding causation, i.e., the nature of the defect which allegedly caused plaintiff to fall, and that fact alone made it impossible for the city to conduct its investigation (see Matter of Raczy v. County of Westchester, 95 A.D.2d 859, 464 N.Y.S.2d 223). This inadequacy was compounded by reason of plaintiff's failure to describe the location of the occurrence with sufficient particularity. The sufficiency of the description is to be determined by the circumstances of each case (Schwartz v. City of New York, supra, 250 N.Y. p. 335, 165 N.E. 517). Manifestly, the mere statement in the instant notice that the incident occurred on "the public roadway at the intersection of Queens Boulevard and Woodhaven Boulevard", a major intersection, was too vague to enable the city to locate the alleged defect. Plaintiff at least should have given the direction and approximate distance of the alleged defect from a specified corner of the intersection or otherwise described its location in such manner as to assure that the city could locate it with reasonable certainty and without conjecture (see Matter of Klobnock v. City of New York, supra; cf. Evers v. City of New York, supra ).

Plaintiff asserts, however, that even if her notice of claim failed to describe the site of the accident with the required specificity, such deficiency in her notice should be disregarded by reason of the fact that the city had actual knowledge of the incident giving rise to the claim. In determining the validity of this argument, we must consider the provisions of subdivision 6 of section 50-e of the General Municipal Law, which provides:

"6. Mistake, omission, irregularity or defect. At any time after the service of a notice of claim and at any stage of an action or special proceeding to which the provisions of this section are applicable, a mistake, omission, irregularity or defect made in good faith in the notice of claim required to be served by this section, not pertaining to the manner or time of service thereof, 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".

This provision makes clear that a mistake, omission, irregularity or defect in a notice of claim may be corrected, supplied or disregarded only where the court determines that two conditions have been met. First, the mistake, omission, irregularity or defect must have been made in good faith, and second, it must appear that the public corporation was not prejudiced thereby (see Nouri v. City of New York, 90 A.D.2d 745, 456 N.Y.S.2d 1). In the present case, there is no contention, and nothing in the record to suggest, that the notice of claim was prepared and served in bad faith. Thus, our determination must turn on the question of whether the city was prejudiced by the lack of specificity in the notice of claim. Plaintiff contends that there was no prejudice, inasmuch as the city received knowledge of the specifics of her claim within a reasonable time after it arose. Specifically, plaintiff maintains that the city acquired such knowledge by reason of (1) her testimony at a Comptroller's hearing (see General Municipal Law, § 50-h), (2) her bill of particulars and (3) the fact that a New York City police officer prepared and filed an aided report on the date of the incident.

According to her notice of claim, plaintiff was injured on January 27, 1979. On January 28, 1980, she was examined at the Comptroller's hearing. Plaintiff testified, albeit with some uncertainty and confusion, that she had fallen while crossing 91st Street between the Queens Boulevard service road and a ramp to the Long Island Expressway. Plaintiff made no mention whatsoever of the intersection of Queens Boulevard and Woodhaven Boulevard, the place set forth in her notice of claim as the scene of the accident. Her testimony, therefore, did not act to provide the city with the precise location of the defect allegedly giving rise to the claim (cf. Cruz v. City of New York, 95 A.D.2d 790, 463 N.Y.S.2d 851, supra; Mayer v. DuPont Assoc., 80 A.D.2d 799, 437 N.Y.S.2d 94; Dillard v. City of New York, 67 A.D.2d 878, 413 N.Y.S.2d 682). To the contrary, plaintiff's testimony materially contradicted her notice of claim and only served to obscure the actual site of the accident (see Faubert v. City of New York, 90 A.D.2d 509, 455 N.Y.S.2d 24, supra ).

With regard to plaintiff's bill of particulars, we note that it was dated September 15, 1980, more than 19 months after the claim allegedly arose. The bill of particulars stated that the accident had occurred "in the public roadway located at the intersection of Queens Boulevard and Woodhaven Boulevard * * * in front of the premises known as 9141 Queens Boulevard", which roadway was "cracked, broken, raised, uneven, unlevel, depressed, and otherwise in a state of disrepair and neglect". Assuming, arguendo, that the foregoing particulars were sufficiently specific to satisfy the requirements of subdivision 2 of section 50-e of the General Municipal Law, we nevertheless conclude that, in light of the significant delay in providing such clarification, the bill of...