

Cruz v City of New York (2016 NY Slip Op 03259)





Cruz v City of New York


2016 NY Slip Op 03259


Decided on April 28, 2016


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 April 28, 2016

Acosta, J.P., Renwick, Manzanet-Daniels, Kapnick, Gesmer, JJ.


968 153005/12

[*1]Cesar Cruz, Plaintiff-Appellant,
vThe City of New York, Defendant-Respondent.


Hallock & Malerba, P.C., Deer Park (Larry Hallock of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Susan Paulson of counsel), for respondent.

Order, Supreme Court, Bronx County (Frank Nervo, J.), entered on or about January 9, 2015, which granted defendant's motion for summary judgment, and denied plaintiff's cross motion for leave to serve an amended notice of claim, unanimously affirmed, without costs.
The court properly granted the motion of defendant, the City of New York, for summary judgment pursuant to Administrative Code § 7-210, as a record search revealed that it did not own the multiple dwelling abutting the sidewalk where, according to the notice of claim and pleadings, plaintiff allegedly fell.
The court also properly denied plaintiff's cross 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 [his] failure to move timely to correct the notice of claim prejudiced defendant's ability to investigate the incident while the surrounding facts were still fresh" (Matos v City of New York, 126 AD3d 570, 571 [1st Dept 2015]; Rodriguez v City of New York, 38 AD3d 268 [1st Dept 2007]). Plaintiff's inconsistent and vague General Municipal Law § 50-h and deposition testimony failed to correct the defect.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 28, 2016
CLERK


