

Matos v City of New York (2015 NY Slip Op 02203)





Matos v City of New York


2015 NY Slip Op 02203


Decided on March 19, 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 March 19, 2015

Tom, J.P., Acosta, Andrias, Moskowitz, Kapnick, JJ.


14553 304214/10

[*1] Luisa E. Matos, Plaintiff-Appellant,
vThe City of New York, et al., Defendants-Respondents.


Greenstein & Milbauer, LLP, New York (Andrew W. Bokar of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Victoria Scalzo of counsel), for municipal respondent.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for Restani Construction Corp., respondent.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered January 17, 2014, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for leave to serve an amended notice of claim and an amended complaint, and granted defendants' motions to dismiss the complaint as against them, unanimously affirmed, without costs.
The court properly denied plaintiff's motion to amend the notice of claim pursuant to General Municipal Law § 50-e(6) and to amend the complaint, because plaintiff's inconsistency as to the location of the accident and her failure to move timely to correct the notice of claim prejudiced defendant City's ability to investigate the incident while the surrounding facts were still fresh (see Rodriguez v City of New York, 38 AD3d 268 [1st Dept 2007]). Plaintiff's vague General Municipal Law § 50-h testimony and the photographs she provided in which she was unable to identify the accident location failed to correct the defect.
The court properly considered defendant Restani's second motion for summary judgment, having expressly granted Restani leave to renew after discovery. Restani established prima facie that it could not have created the defect in the road that allegedly caused plaintiff to trip and fall, and plaintiff failed to raise an issue of fact in opposition.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 19, 2015
CLERK


