Scarpino v. City of Rochester

• Citation: 146 N.Y.S.2d 273,208 Misc. 993
• Parties: Grace SCARPINO and Joseph Scarpino, 126 Independence Street, Rochester, N. Y., Plaintiffs, v. CITY OF ROCHESTER, City of Rochester, New York; E. W. Edwards & Sons, 114-158 Main Street East, Rochester, New York; and Swig & Weiler Charity Fund, 50 East 42nd Street, New York, New York, Defendants. Grace SCARPINO and Joseph Scarpino, 126 Independence Street, Rochester, N. Y. Plaintiffs, v. ROCHESTER GAS & ELECTRIC CORP., 89 East Avenue, Rochester, New York, Defendant.
• Decision Date: 25 November 1955
• Court: United States State Supreme Court (New York)

Page 273

146 N.Y.S.2d 273

208 Misc. 993

Grace SCARPINO and Joseph Scarpino, 126 Independence Street, Rochester, N. Y., Plaintiffs, v. CITY OF ROCHESTER, City of Rochester, New York; E. W.

Edwards & Sons, 114-158 Main Street East, Rochester, New

York; and Swig & Weiler Charity Fund, 50 East 42nd Street,

New York, New York, Defendants.

Grace SCARPINO and Joseph Scarpino, 126 Independence Street, Rochester, N. Y. Plaintiffs, v. ROCHESTER GAS & ELECTRIC CORP., 89 East Avenue, Rochester, New York, Defendant.

Supreme Court, Special Term, Monroe County.

Nov. 25, 1955.

Pilato & Pilato, Rochester, Samuel Pilato, Rochester, of counsel, for plaintiffs.

Honora A. Miller, Rochester, Stephen K. Pollard, Rochester, of counsel, for defendant, City of Rochester.

Nier & Doyle, Rochester, for defendants, E. W. Edwards & Sons, and Swig & Weiler Charity Fund.

Nixon, Hargrave, Devans & Dey, Rochester, John B. McCrory, Rochester, of counsel, for defendant, Rochester Gas & Electric Corp.

SARACHAN, Justice.

Subdivision 6 of Section 50-e of the General Municipal Law reads as follows:

'6. At or before the trial of an action * * * a mistake, omission, irregularity or defect made in good faith in the notice of claim * * * not pertaining to the manner or time of service thereof, may be corrected * * * in the discretion of the court, provided it shall appear that the other party was not prejudiced thereby.'

Here, the plaintiffs filed notices of claim against the City of Rochester in April, 1953. Now, more than two and one-half years later, they seek to amend those notices as well as to amend their complaints in two respects:

1. By completely changing the manner in which they claim the accident to plaintiff, Grace Searpino, occurred.

2. By increasing the amounts of the damages claimed by both plaintiffs.

Both in the verified notices of claim and in the verified complaints, the negligence charged to the defendant City of Rochester consisted substantially in 'permitting and maintaining * * * the curb herein in a dangerous, sloping and defective condition so as to create a dangerous condition.'

It appears that, in an examination before trial on May 19, 1955, plaintiff Grace Scarpino testified to an entirely different version of how the accident occurred--testifying that she caught her heel in a crack in the curb, and that was what caused her to fall and suffer injuries.

The defendant City of Rochester sets up two grounds upon which it opposes this motion:

1. That if granted, the City of Rochester will be materially prejudiced,

2. That the motion is barred by laches.

One of the claims which the defendant, the City of Rochester, urges very strongly is that the crack or cracks, which the plaintiffs now claim existed at the time of the accident, have been covered with an asphaltic material by somebody--the City insisting that it did not do it. It is, therefore, urged that the City at this state is not in a position to defend plaintiffs' claim as to the manner in which the accident happened. The City further claims that in the intervening two and one-half years there has been a change in its position in connection with these...