| Torres v Town of Babylon |
| 2014 NY Slip Op 08981 [123 AD3d 1007] |
| December 24, 2014 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| Juana Torres et al., Appellants, v Town of Babylon, Defendant, and Town of Babylon Industrial Development Agency, Respondent. |
Gruenberg Kelly Della, Ronkonkoma, N.Y. (Zachary M. Beriloff of counsel), for appellants.
Hoey, King, Epstein, Prezioso & Marquez, New York, N.Y. (Regine Dely-Lazard of counsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Pitts, J.), dated February 18, 2014, which denied their motion pursuant to General Municipal Law § 50-e (6) for leave to serve an amended notice of claim.
Ordered that the order is affirmed, with costs.
Pursuant to General Municipal Law § 50-e (6), a court has discretion to
grant leave to serve an amended notice of claim where the error in the original notice was
made in good faith and where the other party has not been prejudiced thereby (see Copeland v City of New
York, 90 AD3d 691 [2011]; Sanchez v City of New York, 87 AD3d 576 [2011]). Here,
while there is no indication that the error regarding the location of the subject accident in
the original notice of claim was made in bad faith, the record demonstrates prejudice to
the respondent, the defendant Town of Babylon Industrial Development Agency
(hereinafter the Agency), as a result of the error. The original notice of claim
misidentified the location of the accident as the "walkway/pathway" in front of 595
Smith Street, East Farmingdale, rather than the correct location, the "roadway/parking
lot" at 540 Smith Street, East Farmingdale. Furthermore, the subsequent complaint, bill
of particulars, photographs of the purported accident location, supplemental bill of
particulars, and even a second supplemental bill of particulars served almost
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