McIntosh v Village of Freeport

McIntosh v Village of Freeport 2012 NY Slip Op 03608 Decided on May 8, 2012 Appellate Division, Second 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 May 8, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
ANITA R. FLORIO, J.P.
L. PRISCILLA HALL
LEONARD B. AUSTIN
JEFFREY A. COHEN, JJ.
2010-00663
(Index No. 10185/07)

[*1]Antoinette McIntosh, etc., et al., respondents,

v

Village of Freeport, appellant, et al., defendants (and a third-party action).




Montfort, Healy, McGuire & Salley, Garden City, N.Y. (Donald
S. Neumann, Jr., of counsel), for appellant.
Spar & Bernstein, P.C. (Adam S. Handler and Pollack, Pollack,
Isaac & De Cicco, New York, N.Y.
[Brian J. Isaac], of counsel), for
respondents.


DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendant Village of Freeport appeals from an order of the Supreme Court, Nassau County (Palmieri, J.), entered December 10, 2009, which granted the motion of the plaintiff Andrea Martin, as guardian of Antoinette McIntosh, an incapacitated person, for leave to amend the notice of claim to add a derivative cause of action to recover damages for loss of services on behalf of Andrea Martin, in her individual capacity.

ORDERED that the order is affirmed, with costs.

The Supreme Court properly granted the motion of the plaintiff Andrea Martin (hereinafter the plaintiff), as guardian of Antoinette McIntosh, for leave to amend her notice of claim to assert a derivative cause of action to recover damages for loss of services on her own behalf. The plaintiff sought leave to amend her notice of claim in order to address an omission (see General Municipal Law § 50—e[6]). The proposed amendment sought to add a derivative claim predicated upon the same facts which had already been included in the notice of claim and complaint. Therefore, the defendant Village of Freeport had been duly and timely notified (see Burgarella v City of New York, 265 AD2d 361). Under the circumstances, since the Village did not suffer any prejudice, the plaintiff's motion for leave to amend the notice of claim was properly granted (id. at 362).

The Village's remaining contention is without merit.
FLORIO, J.P., HALL, AUSTIN and COHEN, JJ., concur. [*2]

ENTER:

Aprilanne Agostino

Clerk of the Court