Toro v. City of New York

In a negligence action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Hutcherson, J.), dated March 25, 1991, which denied their application pursuant to General Municipal Law § 50-e (6) to amend their notice of claim so as to change the date upon which the infant plaintiff was allegedly injured.

Ordered that the order is affirmed, with costs.

The plaintiffs moved to amend their notice of claim so as to correct the date on which the infant plaintiff Rudolfo Toro allegedly slipped and fell down a flight of stairs. According to the original notice of claim and the complaint served, the infant plaintiff was caused to fall down a flight of steps by reason of a puddle of water surrounding debris on the landing to the staircase. As the condition complained of was extremely transitory, the purpose of General Municipal Law § 50-e, which is to allow a municipal defendant the opportunity of investigating the situs of the alleged difficulty at a time before there is any change thereto, would have been entirely frustrated had this application been granted (see, Caselli v City of New York, 105 AD2d 251). To allow amendment of the notice of claim some 23 months after the alleged occurrence so as to change the date of the accident would create unquestionable prejudice. Thompson, J. P., Santucci and Joy, JJ., concur.