Decolator, Cohen & DiPrisco, LLP, Garden City, NY (Carolyn M. Canoneri of counsel), for appellant.
Muriel Goode-Trufant, Corporation Counsel, New York, NY (Jane L. Gordon and Antonella Karlin of counsel), for respondents.
COLLEEN D. DUFFY, J.P. LINDA CHRISTOPHER LARA J. GENOVESI LOURDES M. VENTURA, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff Christopher Clark appeals from an order of the Supreme Court, Kings County (Consuelo Mallafre Melendez, J.), dated March 1, 2022. The order denied that plaintiff's motion pursuant to General Municipal Law § 50-e(6) for leave to amend his notice of claim and pursuant to CPLR 3025(b) for leave to amend the complaint.
ORDERED that the order is modified, on the law and in the exercise of discretion, by deleting the provision thereof denying that branch of the motion of the plaintiff Christopher Clark which was pursuant to CPLR 3025(b) for leave to amend the complaint to add causes of action pursuant to General Municipal Law § 205-e predicated upon alleged violations of Vehicle and Traffic Law §§ 1111, 1212, and 1144(b), and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.
Christopher Clark (hereinafter the plaintiff) served a timely notice of claim upon the defendant City of New York, alleging that he was injured in October 2018 while working as a police officer with the New York City Police Department. According to the notice of claim, at that time, the plaintiff was a passenger in a police vehicle driven by the defendant Michael Lassen, also a police officer, which collided with a vehicle driven by the defendant Yajiara Jimenez. The notice of claim alleged, inter alia, that, on the date at issue, with the police vehicle's lights and siren activated, Lassen drove the police vehicle through a red light at an intersection in Brooklyn when it was struck by the vehicle owned and operated by Jimenez. The notice of claim asserted, among other things, negligent and reckless conduct by Lassen with respect to his operation of the police vehicle, and negligent conduct by the City with respect to supervision and training of Lassen. Thereafter, the plaintiff appeared for and testified at a hearing pursuant to General Municipal Law § 50-h.
In September 2019, the plaintiff, among others, commenced this action against the City and Lassen (hereinafter together the City defendants) and Jimenez to recover damages for injuries he alleged he sustained in the accident. More than one year later, the plaintiff moved pursuant to General Municipal Law § 50-e(6) for leave to amend his notice of claim and pursuant to CPLR 3025(b) for leave to amend the complaint. By order dated March 1, 2022, the Supreme Court denied the plaintiff's motion. The plaintiff appeals.
"A timely and sufficient notice of claim is a condition precedent to asserting a tort claim against a municipality or public benefit corporation" (Se Dae Yang v New York City Health & Hosps. Corp., 140 A.D.3d 1051, 1052, citing General Municipal Law § 50-e[1][a]). "A notice of claim must set forth, inter alia, the nature of the claim, and the time, place, and manner in which the claim arose" (Lipani v Hiawatha Elementary Sch., 153 A.D.3d 1247, 1248, citing General Municipal Law § 50-e[2]). "The purpose of the statutory notice of claim requirement is to afford the public corporation an adequate opportunity to investigate the circumstances surrounding the claim and to explore the merits of the claim while information is still readily available" (Harrison v City of New York, 197 A.D.3d 630, 630-631 [alterations and internal quotation marks omitted]). Pursuant to General Municipal Law § 50-e(6), "[a] notice of claim may be amended only to correct good faith and nonprejudicial technical mistakes, omissions, or defects, [but] not to substantively change the nature of the claim or the theory of liability" (Castillo v Kings County Hosp. Ctr., 149 A.D.3d 896, 897; see Matter of Johnson v County of Suffolk, 167 A.D.3d 742, 743-744). "Amendments of a substantive nature are not within the purview of [the statute]" (Macareno v New York City Tr. Auth., 206 A.D.3d 642, 643 [internal quotation marks omitted]).
The plaintiff's notice of claim set forth various theories of liability relating to Lassen's alleged negligent and/or reckless operation of the police vehicle, and the City's purported failure to adequately supervise, hire, instruct, and/or train police officers in relation to the operation of vehicles. Contrary to the plaintiff's contention, his allegations in the proposed amended notice of claim that were unrelated to vehicle operation did not serve merely to "correct... technical mistakes, omissions, or defects" (Castillo v Kings County Hosp. Ctr., 149 A.D.3d at 897). Since the plaintiff sought to include various claims relating to new theories of liability regarding the allegedly unsafe condition of the police vehicle, including, inter alia, that the City failed to have "second impact protection" and "padding inside the vehicle," and that "a ballistic shield [improperly] encumbered the space inside the vehicle," as well as a violation of Vehicle and Traffic Law § 375(1), which, inter alia, requires every motor vehicle to be furnished with certain equipment, the Supreme Court properly denied that branch of the plaintiff's motion which was for leave to amend his notice of claim to add those allegations (see Macareno v New York City Tr. Auth., 206 A.D.3d at 643; Congero v City of Glen Cove, 193 A.D.3d 679, 681). The court also properly denied that branch of the plaintiff's motion which was for leave to amend his notice of claim to include a claim that the City "fail[ed] to provide a safe place to work" in violation of Labor Law § 27-a(3), since that allegation improperly constituted a new theory of liability, and was therefore outside "the purview of General Municipal Law § 50-e(6)" (Macareno v New York City Tr. Auth., 206 A.D.3d at 643 [internal quotation marks omitted]). Contrary to the plaintiff's contention, his testimony at the General Municipal Law § 50-h hearing could not serve as a basis to amend his notice of claim to assert these new theories of liability, since the relevant allegations did not serve to correct "technical mistake[s], omission[s], irregularit[ies], or defect[s]" (Mosley v City of New York, 217 A.D.3d 857, 859 [internal quotation marks omitted]).
To the extent that the plaintiff's motion sought leave to amend his notice of claim to add claims pursuant to General Municipal Law § 205-e predicated upon alleged violations of Vehicle and Traffic Law §§ 1129(a), 1140, and 1225-c, there was no need to amend the notice of claim because the allegations therein were sufficient to alert the City to those potential causes of action under General Municipal Law § 205-e (see Bartley v County of Orange, 111 A.D.3d 772, 772-773).
Moreover, although leave to amend a pleading pursuant to CPLR 3025(b) shall be freely given and allegations in a pleading that merely amplify those in a notice of claim are permissible, "allegations [that] go beyond mere amplification" and "instead [constitute] new, distinct, and independent theories of liability" are not permissible (see Mosley v City of New York, 217 A.D.3d at 860; Bartley v County of Orange, 111 A.D.3d at 774). Thus, the Supreme Court properly denied that branch of the plaintiff's motion which was for leave to amend the complaint to add "causes of action or legal theories... that were not directly or indirectly mentioned in the notice of claim and that change[d] the nature of the claim or assert[ed] a new one" (Jacobowitz v City of New York, 222 A.D.3d 953, 955 [internal quotation marks omitted]).
However, the Supreme Court should have granted that branch of the plaintiff's motion which was for leave to amend the complaint to add allegations relating to purported acts or omissions regarding Lassen's operation of the police vehicle, including causes of action pursuant to General Municipal Law § 205-e asserted against the City defendants and predicated upon Lassen's alleged violation of various provisions of the Vehicle and Traffic Law regulating the operation of motor vehicles (see Bartley v County of Orange, 111 A.D.3d at 774). These causes of action were based upon the same purported acts and omissions already set forth in the notice of claim (see id.). Since Lassen's alleged negligent and/or reckless operation of the police vehicle and the City's concomitant negligence in failing to properly supervise and/or train Lassen were set forth in the notice of claim and the complaint, the new allegations effectively "amplif[ied]" the previously asserted allegations and did not constitute "new, distinct, and independent theories of liability" (Mosley v City of New York, 217 A.D.3d at 860; see Ryan v Town of Riverhead, 117 A.D.3d 707, 710). The fact that the proposed amended complaint alleged violations of statutory provisions not set forth in the notice of claim or original complaint, was not, standing alone, a basis to deny leave to amend (see Matute v Town of Hempstead, 179 A.D.3d 1047, 1049; Ryan v Town of Riverhead, 117 A.D.3d at 710). Since the notice of claim "provided information... sufficient to alert the [defendants] to the potential [General Municipal Law § 205-e] cause[s] of action" predicated upon Lassen's alleged failure to properly operate the police vehicle (Bartley v County of Orange, 111 A.D.3d at 774; see Se Dae Yang v New York City Health & Hosps. Corp., 140 A.D.3d at 1052-1053), the court should not have denied that branch of the plaintiff's motion which was for leave to amend the complaint to add those allegations on the ground that they were outside the existing notice of claim.
"In the absence of prejudice or surprise resulting directly from the delay in seeking leave, applications to amend or supplement a pleading are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit. The burden of demonstrating prejudice or surprise, or that a proposed amendment is palpably insufficient or patently devoid of merit, falls upon the party opposing the motion" (Wilmington Sav. Fund Socy., FSB v Sotomayor, 222 A.D.3d 702, 703 [citations and internal quotation marks omitted]). "Delay alone is insufficient to bar an amendment to the pleading; it must be lateness coupled with significant prejudice to the other side" (Burger v Village of Sloatsburg, 216 A.D.3d 730, 731 [alterations and internal quotation marks omitted]).
The City defendants' contention that the plaintiff's proposed causes of action pursuant to General Municipal Law § 205-e were patently devoid of merit as time-barred is without merit in light of the provisions of CPLR 203(f) (see Calamari v Panos, 131 A.D.3d 1088, 1089). Although the City defendants correctly contend that the plaintiff's proposed amendment alleging a violation of Vehicle and Traffic Law § 1180(a) as a predicate for General Municipal Law § 205-e liability, based on the assertion that Lassen was operating the police vehicle at an excessive rate of speed, is palpably without merit as the allegation is expressly undermined by the plaintiff's own section 50-h hearing testimony (see Harper v City of New York, 129 A.D.2d 770, 770-772), the City defendants did not demonstrate that the causes of action pursuant to General Municipal Law § 205-e based on alleged violations Vehicle and Traffic Law §§ 1111, 1212, and 1144(b) were palpably insufficient or patently devoid of merit. Since the City defendants failed to meet their burden of demonstrating that these "proposed amendment[s] [are] palpably insufficient or patently devoid of merit," nor did they argue that they would suffer any prejudice or surprise, the Supreme Court should have granted that branch of the plaintiff's motion which was for leave to amend the complaint to include these causes of action (Wilmington Sav. Fund Socy., FSB v Sotomayor, 222 A.D.3d at 703; see Burger v Village of Sloatsburg, 216 A.D.3d at 731-732).
The City defendants' remaining contentions need not be reached in light of this determination.
DUFFY, J.P., CHRISTOPHER, GENOVESI and VENTURA, JJ., concur.
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