In this action for the negligent maintenance of the public sidewalk, THE CITY OF NEW YORK (the City) moves for an order dismissing the instant action pursuant to CPLR § 3211(a)(7) on grounds that the notice of claim filed by plaintiff did not specify the precise location of her accident and that, therefore, plaintiff failed to comply with GML § 50-e. Plaintiff opposes the instant motion asserting that the notice of claim filed sufficiently identifies the location where she alleges to have fallen and that, thus, the notice of claim is compliant with prevailing law. Plaintiff also cross-moves seeking leave to amend her notice of claim to reflect the correct date of her accident. The City opposes plaintiff's motion asserting that such motion is untimely.

For the reasons that follow hereinafter, the City's motion is denied and plaintiff's cross-motion is granted.

The instant action is for personal injuries allegedly sustained by plaintiff on April 30, 2011 on the public sidewalk in front of 1055 East Tremont Avenue, Bronx NY. Within her notice of claim, filed on June 22, 2011, plaintiff alleges that on May 8, 2011, she tripped and fell while traversing the "sidewalk in front of 1055 east Tremont Avenue at West Farms Square bounded by East Tremont Avenue, West Farms and Boston Road." She further alleges that she tripped and fell as a result of a cracked, broken, and uneven sidewalk. Plaintiff asserts that her accident and resulting [*2]injuries were the result of the City's negligence with respect to the maintenance of the public sidewalk.

Preliminarily, the Court notes that the City seems to have conflated the burdens of proof imposed by CPLR § 3211(a)(7) and CPLR § 3212; utilizing CPLR § 3211(a)(7) as the basis for dismissal while nevertheless making arguments and submitting proof appropriate on a motion for summary judgment pursuant to CPLR § 3212.

To be clear, a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) is directed at the pleadings. Accordingly, all allegations in the complaint are deemed to be true (Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001] Cron v Hargro Fabrics, 91 NY2d 362, 366 [1998]). All reasonable inferences which can be drawn from the complaint and the allegations therein stated shall be resolved in favor of the plaintiff (id.). The court's role when analyzing the complaint in the context of a motion to dismiss, is to determine whether the facts as alleged fit within any cognizable legal theory (Sokoloff v Harriman Estates Development Corp., 96 NY2d 409, 414 [2001]). Accordingly, on a motion to dismiss for failure to state a cause of action the court usually doesn't concern itself with evidence beyond the four corners of the complaint. The only exception to the foregoing is that promulgated by the Court of Appeals in Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]), namely that extrinsic evidence can be used to negate the allegations in the complaint, and when that is the case, dismissal will eventuate because the, "the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one" (Leon v Martinez, 84 NY2d 83, 88 [1994]). Here, as will be discussed below, the City submits testimony, photographs, and the notice of claim in salient support of its motion, which to the extent it can pursuant to CPLR § 3212, is clear indicia that it seeks summary judgment.

The City's Motion for Summary Judgment

The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986] Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Thus, a defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law by affirmatively demonstrating, with evidence, the merits of the claim or defense, and not merely by pointing to gaps in plaintiff's proof (Mondello v DiStefano, 16 AD3d 637, 638 [2d Dept 2005] Peskin v New York City Transit Authority, 304 AD2d 634, 634 [2d Dept 2003]). Once [*3]movant meets the initial burden on summary judgment, the burden shifts to the opponent who must then produce sufficient evidence, generally also in admissible form, to establish the existence of a triable issue of fact (Zuckerman at 562).

The primary purpose of the notice of claim requirement is to permit the municipality to conduct a prompt investigation of the facts and circumstances from which a claim arose while the information is still fresh and readily available (O'Brien v City of Syracuse, 54 NY2d 353, 358 [1981] Adkins v City of New York, 43 NY2d 346, 350 [1977]). Thus, a delay is often prejudicial insofar as the passage of time often "prevent[s] an accurate reconstruction of the circumstances existing at the time the accident occurred" (Vitale v City of New York, 205 AD2d 636, 636 [2d Dept 1994] [internal quotation marks omitted]). Similarly, a delay can impact a municipal defendant's ability to "locate and examine witnesses while their memories of the facts were still fresh" (Gilliam v City of New York, 250 AD2d 680, 681 [2d Dept 1998] see also Kim at 84). Thus, GML § 50-e provides a municipality with "safeguards devised by law to protect municipalities against fraudulent and stale claims for injuries to persons or property" (Mills v County of Monroe, 59 NY2d 307, 310-311 [1983]).

Pursuant to General Municipal Law (GML) §50-e, the timely filing of a notice of claim is a statutory precondition to the initiation of personal injury suits against a municipality. GML §50-e(a) reads

In any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action against a public corporation, as defined in the general construction law, or any officer, appointee or employee thereof, the notice of claim shall comply and be served with the provisions of this section within ninety days after the claim arises; except that in wrongful death actions, the ninety days shall run from the appointment of a representative of the decedent's estate.

Thus, a party has 90 days from the date the claim arises to file a notice of claim and when a notice of claim is served beyond the required ninety-day period, without leave of court, it is deemed a nullity (Wollins v New York City Bd. of Educ., 8 AD3d 30, 31 [1st Dept 2004] De La Cruz v City of New York, 221 AD2d 168, 169 [1st Dept 1995]).

GML §50-e(2), requires that a notice of claim

be in writing, sworn to by or on behalf of the claimant, and shall set forth: (1) the name and post-office address of each claimant, [*4]and of his attorney if any,; (2) the nature of the claim; (3) the time when, the place where, and the manner in which the claim arose

With regard to the location of an accident, a claimant must identify the location of an accident within his notice of claim not with "with literal nicety or exactness" (Brown v City of New York, 95 NY2d 389, 393 [2000] [internal quotation marks omitted] see also Purdy v City of New York, 193 NY 521, 523-524 [1908]), but merely, with "sufficient [specificity] to enable the city to investigate the claim" (O'Brien at 358). In cases involving allegations of negligence based on a defective sidewalk, notice as to the location of the accident need not be more specific than in other kinds of cases, but it should be noted that

[s]idewalks are, ordinarily, not kept in a perfectly smooth condition. In the space of a few hundred square feet there may be many cracks, depressions and other defects of greater or less moment. The city cannot investigate a claim that a particular defect caused injuries unless the place is stated with sufficient particularity to enable the city to locate that defect and investigate the claim

(Schwartz v City of New York, 250 NY 332, 335 [1929]). Accordingly, if the location alleged within a notice of claim is such that it prevents the municipality from locating the defect alleged and investigating the same, the requirement prescribed by GML § 50-e(2)(2) has not been satisfied (Harper v City of New York, 129 AD2d 770, 771 [2d Dept 1987] ["Initially, we note that the plaintiff's original notice of claim, which merely stated that the accident occurred at Crown Street and New York Avenue', failed to describe the location of the alleged defect with sufficient particularity to enable the defendant to conduct a proper investigation and otherwise assess the merits of the plaintiff's claim."] Faubert v City of New York, 90 AD2d 509. 509 [2d Dept 1982] [Notice of claim defective when it missated the location of the sidewalk alleged to have caused plaintiff's accident. Specifically, "the notice of claim erroneously described the accident site as the sidewalk located on Parsons Boulevard between Jewel Avenue and 65th Street', when the actual location of the accident was on Parsons Boulevard between Jewel Avenue and 65th Avenue."] Caselli v City of New York, 105 AD2d 251, 253 [2d Dept 1984] ["Manifestly, the mere statement in the instant notice that the incident occurred on "the public roadway at the intersection of Queens Boulevard and Woodhaven Boulevard", a major intersection, was too vague to enable the city to locate the alleged defect."]).

Even when the location within a notice of claim is in it of itself insufficient to permit the municipality to locate the [*5]defective condition and investigate, "[i]n passing on the sufficiency of a notice of claim in the context of a motion to dismiss, courts are not confined to the notice of claim itself" (D'Alessandro v New York City Tr. Auth., 83 NY2d 891, 893 [1994]). Instead, whether such motion should be granted hinges on whether the municipality was prejudiced by any deficiency in the description of the location within the notice of claim (id.). If any deficiency was ameliorated by virtue of testimony at a hearing pursuant to GML § 50-h, or by any other relevant evidence, a motion to dismiss for failure to comply with GML 50-e(2), should be denied (id.; Rivera v City of New York, 169 AD2d 387, 388 [1st Dept 1991] ["At the outset, it should be noted that even assuming that plaintiff's counsel might have prepared a more comprehensive notice of claim, the fact remains that this case hardly presents an example of a vague negligence claim being foisted upon the City of New York, the examination in the Comptroller's office narrowed the possible accident site to one of two places, and the photographs not only show the pothole to have been so large that anyone inspecting these spots could hardly have missed it but also served to put the defect in a readily identifiable location."]).

Here, the City fails to establish prima facie entitlement to summary judgment insofar as its own evidence - namely the notice of claim - fails to establish that the location asserted by plaintiff therein was inadequate so as to prevent identification of the defect alleged and a subsequent investigation of the same. As noted above, plaintiff's notice of claim describes the location of the accident as a portion of sidewalk located "in front of 1055 east Tremont Avenue at West Farms Square bounded by East Tremont Avenue, West Farms and Boston Road." Thus, not only does plaintiff provide a specific address, but she also provides a narrow geographic area - meaning the street upon which the defect existed as well as the intersecting streets. Thus, this location was specific enough to allow the City to discover the alleged defect and investigate the same.

Notwithstanding the foregoing, assuming arguendo, that the location alleged within plaintiff's notice of claim was inadequate, on August 22, 2011, at a hearing pursuant to GML § 50-h, plaintiff identified the location of the instant accident. Specifically, plaintiff - who using pictures identified the location of the instant accident as on the sidewalk in front of a Twin Doughnut - testified that she fell on the sidewalk in front of doughnut shop located on East Tremont Avenue near West Farms. Accordingly, plaintiff's testimony coupled with the photographs identified thereat, particularized the location of the instant accident , thereby, ameliorating any shortcoming as to location within her notice of claim (D'Alessandro at 893). Accordingly, the City [*6]fails to establish prima facie entitlement to summary judgment. Therefore, the City's motion is denied, notwithstanding the adequacy of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985] ["The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers" (internal citation and quotation marks omitted)]).

Plaintiff's Cross-Motion Seeking Leave to Amend Her Notice of ClaimPlaintiff's motion seeking leave to amend her notice of claim to reflect the correct date of occurrence is hereby granted insofar as the amendment will not prejudice the City.

GML § 50-e(6) allows the amendment of a notice of claim upon application to the court. It reads, in pertinent part,

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.

Thus, generally, a mistake made in good faith, within a notice of claim, can be corrected absent a showing that such amendment will prejudice the municipal defendant (Mayer v DuPont Associates, Inc., 80 AD2d 799, 799-800 [1st Dept 1981]); Sanchez v City of New York, 25 AD2d 731, 732 [1st Dept 1966]); Gatewood v Poughkeepsie Housing Authority, 28 AD3d 515, 515 [2d Dept 2006]). However, it is clear that the types of amendments allowed are those of a non-substantive nature, such as the date of the occurrence or its location (id.). Substantive amendments to a notice of claim, such as the addition of a party or the addition of a new theory of liability are not allowed pursuant to GML § 50-e(6) (Moore v Melesky, 14 AD3d 757, 759 [3d Dept 2005] ["corrections of a substantive nature are beyond the scope of the discretion conferred by General Municipal Law § 50-e (6)"]); Harrington v City of New York, 6 AD3d 662, 663 [2d Dept 2004]); Zwecker v Clinch, 279 AD2d 572, 574 [2d Dept 2001]).

Here, plaintiff seeks to amend her notice of claim to allege that the instant accident occurred on April 30, 2011 instead of May 8, 2011, the date asserted within her notice of claim. It is [*7]certainly true that during the pendency of this litigation, plaintiff has alleged that the incident herein occurred on several different dates: May 8, 2011 in her notice of claim, May 7, 2011 in her bill of particulars, and April 30, 2011 in her deposition. However, given the nature of the defect alleged, a hole on the sidewalk, difference in the dates of dates of occurrence, namely seven days, the City can hardly and credibly claim prejudice (Gatewood at 515). Nor can the City claim that plaintiff's faulty memory - the reason given for the discrepancy in dates, amounts to bad faith (id.).

In fact, because, here, liability hinges on whether the defect alleged existed and whether the City created it or had prior written notice of its existence ^[FN1], it is clear that the City will not prejudiced by allowing plaintiff to amend her notice of claim. After all, the seven-day difference with respect to the date of occurrence could hardly be said be said to have hindered the City's investigation. If the defect existed on May 8, 2011, it likely existed on April 30, 2011. Whether the City created the defective condition or had prior written notice of its existence is not affected by an earlier date of occurrence since any defense hinges on documentary proof, the likes of which, if readily available for an occurrence on March 8, 2011, is equally available for April 30, 2011, only a week earlier. Moreover, to the extent that 7-201 of the Administrative Code requires prior written notice of a defect at least 15 days prior to the date of occurrence, here, where the amendment sought is to allege an earlier date, it cannot be said that the same is precipitated upon a disingenuous attempt to meet the prior written notice requirement. Were plaintiff trying to move the date of occurrence into the future, which then might make an otherwise unviable claim viable, then the City's claim of prejudice would be more persuasive. It is hereby

ORDERED that plaintiffs is granted leave to serve an amended [*8]notice of claim reflecting April 30, 2011 as the date of occurrence. It is further

ORDERED that plaintiff serve a copy of this Decision and Order with Notice of Entry upon the City within thirty (30) days hereof

Dated : March 27, 2014

Bronx, New York

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Mitchell J. Danziger, ASCJ