Matter of Andrzej Puzio v City of New York

Matter of Puzio v City of New York 2005 NY Slip Op 09732 [24 AD3d 679] December 19, 2005 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 15, 2006

In the Matter of Andrzej Puzio et al., Appellants,
v
City of New York, Respondent, et al., Defendants.

—[*1]

In a proceeding pursuant to General Municipal Law § 50-e, in effect, for leave to amend a notice of claim, the petitioners appeal from an order of the Supreme Court, Kings County (Solomon, J.), dated April 20, 2005, which denied their application.

Ordered that the order is reversed, on the facts and as a matter of discretion, with costs, the application is granted, and the petitioners' amended notice of claim is deemed served.

General Municipal Law § 50-e (6) authorizes a court, in its discretion, to grant leave to serve an amended notice of claim where the error in the original notice of claim was made in good faith, and where the other party has not been prejudiced thereby. Here, there is no allegation that the error in setting forth the accident date in the original notice of claim was made in bad faith. Furthermore, the respondent did not demonstrate any actual prejudice, and the record discloses no basis to presume the existence of prejudice. Under these circumstances, the petitioners' application should have been granted (see Lin v City of New York, 305 AD2d 553 [2003]; Matter of Berko v City of New York, 302 AD2d 594 [2003]; Rosetti v City of Yonkers, 288 AD2d 287 [2001]; Formanek v New York City Hous. Auth., 197 AD2d 664 [1993]; Zinnamon v City of New York, 197 AD2d 618 [1993]). Ritter, J.P., Rivera, Spolzino and Covello, JJ., concur.