Shea v. Inc. Village of Head of the Harbor

Balletta, J.,

dissents and votes to affirm the order and judgment insofar as appealed from, with the following memorandum, in which Lawrence, J., concurs: I respectfully disagree with the majority herein and vote to affirm the order and judgment granting the motion by the defendant Incorporated Village of Head of the Harbor to dismiss the complaint due to a defective notice of claim under General Municipal Law § 50-e (2).

General Municipal Law § 50-e (2) provides, inter alia, that a notice of claim shall set forth: "(1) the name and post-office address of each claimant, 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; and (4) the items of damage or injuries claimed to have been sustained so far as then practicable”.

The purpose of the statute is to provide a public corporation with "an adequate opportunity to investigate the circumstances surrounding the accident and to explore the merits of the claim while information is still readily available” (Teresta v City of New York, 304 NY 440, 443; see also, O’Brien v City of Syracuse, 54 NY2d 353, 358; Levine v City of New York, 111 AD2d 785; Caselli v City of New York, 105 AD2d 251, 252).

Here, the plaintiffs notice of claim was defective on its face in a number of respects. In the first instance, the notice of claim merely referred to an "accident which took place on July 6, 1981, at about midnight”. There was no suggestion in the notice as to what type of "accident” the plaintiff claimed to have had, whether it involved a pedestrian, a bicyclist, or a motorist. Further, the notice failed to specify with any particularity the cause of the accident (see, Altmayer v City of New York, 149 AD2d 638; Caselli v City of New York, supra). There was no mention in the notice as to any claim of negligence based upon a stop sign obstructed by vegetation, which is particularly prejudicial because it prevented the Village from investigating this transitory condition (see, Levine v City of New York, supra). Moreover, upon examination of the remainder of the notice, we find that the plaintiffs claim of an inadequate traffic control plan was set forth in language that was so overly broad and general as to consist of no notice at all of the negligence allegedly committed by the Village (see, Lupo v City of New York, 160 AD2d 773; Altmayer v City of New York, supra; Caselli v City of New York, supra; Matter of *679Klobnock v City of New York, 80 AD2d 854). "Merely providing notice of the occurrence is not adequate to constitute notice of a particular claim” (see, Brown v New York City Tr. Auth., 172 AD2d 178, 180).

In addition, the notice failed to set forth "so far as then practicable” the items of damage or injuries claimed to have been sustained. The plaintiffs notice merely stated in this regard that the plaintiff had sustained "extensive injuries * * * including hospitalization together with special and general damages, loss of services and society”. Such generalities fail to meet the specificity requirements of the statute (see, Matter of Lucy L. v County of Westchester, 149 AD2d 707; Matter of Soe v County of Westchester, 142 AD2d 584). Certainly, the two-month period between the date of the accident and the date of the notice of claim was a sufficient period of time within which the plaintiff could have assessed and reasonably detailed the injuries claimed.

It is significant that although General Municipal Law § 50-e (6) allows a party to seek leave to correct "a mistake, omission, irregularity or defect made in good faith”, at no time did the plaintiff seek leave to amend his notice of claim.

It can be clearly seen that this lawsuit represents a classic case of filing a general notice of claim and then attempting to construct a case within the parameters of the notice of claim at a later time. The majority’s conclusion that the notice of claim in this case was sufficiently particular effectively sanctions the use of the kind of boilerplate and shotgun approach, utilizing overly broad terminology which could cover every possible defect without in any way pinpointing the alleged defects on which the claimant relies.

Accordingly, the Supreme Court, Suffolk County, properly granted the defendant Village’s motion to dismiss.