Plaintiff Lydia Gracia ("Gracia") moves pursuant to Municipal Law sec 50-e(6) to serve an amended notice of claim and amended summons and complaint upon the defendant City of New York (the "City").

On September 12, 2006, it is alleged that Gracia fell on a raised sidewalk in front of what is known to be 342 East 92nd Street, Brooklyn, New York, and sustained injuries, including a broken leg and torn muscles. On October 23, 2006, a timely notice of claim was filed against the City, stating that the accident occurred on the sidewalk in front of 342 92nd Street, Brooklyn, New York, leaving out the "East" in front of 92nd Street. The notice of claim was verified and served with photographs attached showing that the accident occurred in front of a residential property.

The Comptrollers Office for the City conducted an investigation pursuant to New York City Administrative Code sec. 7-210, to see if the property fit one of the exceptions for one, two, or three [*2]family homes, therefore subjecting the City to potential liability. The Comptrollers office searched Department of Finance records utilizing "338" 92nd Street, not "342" 92nd Street, as listed in the October 2006 notice of claim. The Department of Finance records show that the property search listed "338 92nd Owners, Corp.", a corporate entity, as owners and was not an exempt property, i.e. a 1-3 family residence but a walk-up apartment building. Therefore, the Comptroller's office concluded that there was no liability for the City. That office sent a letter on November 20, 2006 to plaintiff's attorney explaining that the claim was disallowed. The City did not conduct a 50-h hearing based on the Comptroller's office conclusions.

On April 20, 2007, a summons and complaint was served by the plaintiff, the City answered on May 21, 2007. Plaintiff brought on this Order to Show Cause to amend the notice of claim on

October 19, 2007.

The Court has wide discretion, to grant an application for leave to serve an amended notice of claim. Section 50-e (6) of the General Municipal Law reads:

Mistake, omission, irregularity or defect. At any time after the service of a notice of claim and at any stage of an action or special proceeding to which the provisions of this section are applicable, a mistake, omission, irregularity or defect made in good faith in the notice of claim required to be served by this section, not pertaining to the manner or time of service thereof, may be corrected, supplied or disregarded, as the case may be, in the discretion of the court, provided it shall appear that the other party was not prejudiced thereby.

A court in its judgment may grant a motion for leave to serve an amended notice of claim where a mistake was made in good faith and the municipality has not been prejudiced. (Kaminsky v City of New York, 238 AD2nd [2nd Dept 1997], Illera v NewYork City Tr Auth., 181 AD2nd 658 [2nd Dept 1992].) Plaintiff argues that the mistake was a typographical error, leaving out the "East" in front of 92nd Street and that plaintiff's counsel was apprised of the omission of the word "East" when a property search was done to locate the owner of the property near the sidewalk.

Where the notice of claim was sufficient to allow the defendant with a modicum of effort to have discovered the true location of an incident, even where the notice was incorrect, amendment of the notice of claim has been allowed. ( Zahara v New York City Housing, 16 AD3rd 245 [1st Dept 2005], Basile by Basile v City of New York 159 AD2nd 239 [1st Dept 2007], Colon v Ferriera Brothers Contracting, Inc., 2 Misc.3rd 1008 [NY Sup. 2004].) In this case, the notice of claim lists the address correctly, except where it fails to list "East 92nd" Street. The Comptroller's office made negligible effort to determine if the notice of claim gave rise to liability. The Comptroller's office made a search of records, however, the search that was conducted was for an address, i.e. " 339 92nd" Street, Brooklyn, that was not listed in the notice of claim. Thus, the City can show no prejudice because it never conducted a search of the incorrectly listed address in the notice of claim. Moreover, there is nothing in the record that shows that the investigation was taken further than a computer search by the Comptroller's office, even though the photographs attached to the notice of claim clearly showed that the alleged trip and fall took place in front of a residential home, clearly not the walk-up apartment building listed on the City's search. Submission of photographs taken close in time to the date of the accident have been accepted for the purpose of elucidating the precise locus of an accident. (Matter of Gerzel v City of New York, 117 AD2d 549 [1st Dept 1986].) Notices of claim have been found to give enough knowledge to the municipality to investigate if it locates the accident site well enough. (Brown v New York City, 95 NY2nd 251.) [*3]

The Court also considered whether the City acquired actual knowledge of the essential facts constituting the claim within the 90-day filing period or a reasonable time thereafter. Here, the City did acquire the essential facts through the photographs which sufficed to show the defective condition occurring in front of a residential home along with an address that was almost exactly the same as the one that is sought to be added as an amendment. (Innes v County of Genesee, 99 AD2d 642, [4th Dept 1984]; Flynn v City of Long Beach, 94 AD2d 713, [2d Dept 1983], Caselli v City of New York, 105 AD2d 251, 256 [2d Dept 1984].)

The court must further consider the reason for the delay and whether the delay substantially prejudiced the public corporation's ability to defend on the merits. Prejudice is not presumed and must be established by the City by showing the mistake thwarted its investigation of the accident. (Santiago v County of Suffolk 280 AD2nd 594 [2nd Dept 2001], Torres v New York City Housing Auth. 261 AD2nd 273 [1st Dept 1999].) As noted, the City cannot demonstrate prejudice where, as here, the search by the Comptroller's office was done for an address that was not in the original notice of claim. Additionally, at oral argument, it was indicated to the Court that the site of the alleged accident has remained essentially the same.

Accordingly, the motion to serve an amended notice of claim pursuant to Municipal Law

50-e and an amended summons and complaint is granted. Plaintiff shall serve same within twenty (20) days of service of this order with notice of entry.

This constitutes the decision and order of the Court.

E N T E R:

__________________________________________

ROBERT J. MILLER

Justice