Ryabchenko v. N.Y.C. Transit Auth.

174 A.D.3d 549

101 N.Y.S.3d 646 (Mem)

Lyubov RYABCHENKO, Respondent,

v.NEW YORK CITY TRANSIT AUTHORITY, et al., Appellants.

2018–12443

Index No. 506684/16

Supreme Court, Appellate Division, Second Department, New York.

Argued - April 9, 2019

July 3, 2019

Lawrence Heisler, Brooklyn, N.Y. (Timothy J. O'Shaughnessy of counsel), for appellants.

Berson & Budashewitz, New York, N.Y. (Elliot Budashewitz of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion is denied.

On April 28, 2015, the plaintiff allegedly sustained injuries when she fell in the stairway labeled "U2A" on the north end of the "N Platform" at the Stillwell Avenue subway station in Coney Island. A timely served notice of claim dated June 1, 2015, alleged, in relevant part, that the steps and/or stairs were "defective," "uneven, misleveled, smooth" with a "slick surface," and that the New York City Transit Authority and the Metropolitan Transportation Authority (hereinafter together the defendants), were negligent "in the ownership, operation, control, and maintenance" of the stairs. The plaintiff subsequently filed a complaint dated April 12, 2016, alleging, in relevant part, that her injuries were caused by the defendants' negligence in the ownership, operation, management, maintenance, care, custody, and control of the premises.

More than two years later, in April 2018, the plaintiff moved pursuant to General Municipal Law § 50–e(6) for leave to amend her notice of claim to remove any mention of the stairs being "uneven, misleveled, smooth" with a "slick surface," and to add new allegations that the stairs were "defectively installed ... and/or designed ... with a hole/gap upon which [the plaintiff's] foot was caused to trip and fall." The Supreme Court granted the motion. We reverse.

"A notice of claim may be amended only to correct good faith and nonprejudicial technical mistakes, omissions, or defects, 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, 52 N.Y.S.3d 451 ; see Matter of Johnson v. County of Suffolk, 167 A.D.3d 742, 743, 90 N.Y.S.3d 84 ). Amendments of a substantive nature are not within the purview of General Municipal Law § 50–e(6) (see Holder v. County of Westchester, 169 A.D.3d 1017, 1019, 94 N.Y.S.3d 569 ).

Here, the plaintiff's notice of claim made no allegations of any "hole/gap" in which the plaintiff's foot got caught, or that the stairs were defectively installed or designed (compare Crew v. Town of Beekman, 105 A.D.3d 799, 962 N.Y.S.2d 677, and Rodriguez v. New York City Tr. Auth., 286 A.D.2d 681, 730 N.Y.S.2d 135, with Ortega v. New York City Tr. Auth., 170 A.D.3d 872, 96 N.Y.S.3d 117 ). Therefore, the proposed amendments were not...