Torres v City of New York

Torres v City of New York 2015 NY Slip Op 01718 Decided on February 26, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 26, 2015
Gonzalez, P.J., Mazzarelli, Acosta, Moskowitz, DeGrasse, JJ.
14356 21807/12

[*1] Milagro Torres, et al., Plaintiffs-Respondents,

v

The City of New York, Defendant-Appellant, Consolidated Edison Company of New York, et al., Defendants.

Morris Duffy Alonso & Faley, New York (Arjay G. Yao and Andrea Alonso of counsel), for appellant.

Lisa M. Comeau, Garden City, for respondents.

Order, Supreme Court, Bronx County (Mitchell J. Danzinger, J.), entered on or about June 19, 2014, which, inter alia, denied defendant's motion to dismiss the complaint, unanimously affirmed, without costs.

The notice of claim at issue specified that plaintiff was injured when she tripped and fell "on the median" at the southwest corner of Lincoln Avenue and East 138th Street, due to a defect, hole, crack, or breaks "in the street." At her General Municipal Law § 50-h hearing, plaintiff testified that she tripped at the place where the sidewalk meets the street, and when shown photographs of the street corner, circled the intersection of the sidewalk curb and the roadway as the place where she fell. The location description in the notice of claim, when considered in conjunction with plaintiff's 50-h testimony, was sufficient to enable defendant to conduct a prompt investigation, and assess the merits of plaintiff's claim. Defendant failed to exclude the possibility that any notice defects, if they exist, "were remedied at the General Municipal Law § 50—h hearing" (Cruz v New York City Hous. Auth. , 269 AD2d 108, 109 [1st Dept 2000]), as plaintiff's hearing testimony enabled defendant "to identify precisely the site of the accident" (Ortiz v New York City Hous. Auth. , 214 AD2d 491, 492 [1st Dept 1995]).

Defendant also failed to show any prejudice resulting from the notice of claim's description, inasmuch as it made no effort to investigate the circumstances of plaintiff's accident (see Miles v City of New York , 173 AD2d 298, 299-300 [1st Dept 1991]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 26, 2015

CLERK