DeLeonibus v. Scognamillo

• Decision Date: 04 May 1992
• Citation: 583 N.Y.S.2d 285,183 A.D.2d 697
• Parties: Vito DeLEONIBUS, et al., Plaintiffs-Appellants, v. Phyllis SCOGNAMILLO, Defendant-Appellant, City of New York, Respondent, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 285

583 N.Y.S.2d 285

183 A.D.2d 697

Vito DeLEONIBUS, et al., Plaintiffs-Appellants, v. Phyllis SCOGNAMILLO, Defendant-Appellant City of New York, Respondent, et al., Defendant.

Supreme Court, Appellate Division Second Department.

May 4, 1992.

Zalman & Schnurman, New York City (Evan Sarzin and Benjamin Zalman, of counsel), for plaintiffs-appellants.

Zachary & Tracy, P.C., Staten Island (Dennis P. Hannafey and Maryellen Dicks, of counsel), for defendant-appellant.

O. Peter Sherwood, Corp. Counsel, New York City (Fay Leoussis and William J. Thom, of counsel), for respondent.

Before MANGANO, P.J., and BRACKEN, PIZZUTO and SANTUCCI, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., the defendant Phyllis Scognamillo appeals from so much of an amended interlocutory judgment of the Supreme Court, Richmond County (Amann, J.), entered May 1, 1990, as, inter alia, upon a jury verdict on the issue of liability, is in favor of the plaintiff Vito DeLeonibus and against her finding her 30% at fault in the happening of the accident and dismissed her cross claim against the defendant City of New York, and the plaintiffs separately appeal from so much of the same amended interlocutory judgment as dismissed the complaint insofar as it is asserted against the defendant City of New York.

ORDERED that the amended interlocutory judgment is modified, on the law, by deleting the provision thereof which dismissed the complaint insofar as it is asserted against the defendant City of New York, and the provision thereof which dismissed the cross claim of the defendant Phyllis Scognamillo against the City of New York, and substituting therefor a provision reinstating the jury verdict finding the City of New York 55% at fault in the happening of the accident and sustaining the cross claim; as so modified, the amended interlocutory judgment is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Richmond County, for entry of an appropriate further amended interlocutory judgment.

On June 12, 1985, the plaintiff Vito DeLeonibus was injured in an accident while performing his duties as a sanitation worker for the defendant City of New York (hereinafter the City). The plaintiffs filed a notice of claim in a timely manner with the City, alleging the City's negligence in causing the accident and providing certain details of its negligence. Thereafter, the plaintiffs commenced the instant action against the City and against the defendant Phyllis Scognamillo, the motorist who struck the plaintiff with her car.

After a jury trial on the issue of liability, the court set aside the jury's verdict finding the City 55% at fault in the happening of the accident and dismissed the complaint insofar as it is asserted against the City, on the procedural basis that the notice of claim had not stated in exact language the plaintiffs' theory of recovery presented at trial, to wit, negligent supervision. We find that the court erred in this regard.

General Municipal Law § 50-e(2) sets forth the criteria for the contents of a notice of claim. In pertinent part, the statute requires that the claimant state the nature...