Inniss v City of New York

[*1] Inniss v City of New York 2006 NY Slip Op 51767(U) [13 Misc 3d 1210(A)] Decided on September 19, 2006 Supreme Court, Richmond County Minardo, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 19, 2006
Supreme Court, Richmond County

Madelaine Inniss, Individually and as Administratrix of the Estate of WILBUR H. INNISS, deceased, Plaintiff,

against

The City of New York, Defendant.



102029/06

Philip G. Minardo, J.

Plaintiff moves for leave to serve upon the defendant City of New York an amended Notice of Claim pursuant to §50-e(6) of the General Municipal Law.

Plaintiff's original Notice of Claim was filed July 1, 2005 alleging, in essence, the defendant City of New York was negligent in its design, construction and maintenance of a public road. The instant lawsuit involves the deceased Wilbur H. Inniss, a pedestrian being struck by a bus owned by Ozram Transportation, Inc. and driven by its employee.[FN1]

Plaintiff now moves more than one year after her original Notice of Claim was filed to amend her claim to add allegations of negligence in the hiring, retention and entrustment of the bus owned by Ozram Transportation, Inc. The basis for plaintiff's amendment appears to be an article in the Staten Island Advance that indicates that Ozram was not properly maintaining their buses since one of their buses caught fire due to faulty maintenance.

General Municipal Law §50-e(6) does not permit amendments to a Notice of Claim that are substantive in nature. (See Zwecker v. Clinch, 279 AD2d 572 (2nd Dept. 2001). This court finds plaintiff's proposed amended Notice of Claim will add new allegations of negligence which are substantive in nature and accordingly not permitted.

Accordingly, the plaintiff's motion to amend her Notice of Claim is denied. [*2]

This shall constitute the decision and order of the court.

E N T E R,

______________________________

J. S. C. Footnotes

Footnote 1:A separate action has been brought against Ozram Transportation, Inc. and it employee-driver.