First Department: Plaintiff's Section 50-H Examination of Claim Testimony Allowed To Assist Sufficiency Of Notice Of Claim

A senior plaintiff's evidence in an examination of claim under Section 50-H General Municipal Law was sufficient to support his Notice of Claim despite plaintiff's inability to recall the specific bus route number or otherwise specifically identify the bus on which he fell while a passenger in Phillipps v New York City Tr. Auth. 2009 NY Slip Op 09058 .

Relevantly, plaintiff's evidence at the examination of claim included the date on which the accident occured, the street and cross street at which the accident occurred, the circumstances of the accident and other significant facts to support his Notice of Claim. The First Department found that the defendant had failed to establish prejudice.

New York County Supreme Court's denial of defendant's motion to dismiss for service of inadequate Notice of claim was affirmed by the First Department:

"Plaintiff stated in the notice of claim that "[o]n or about the 17th day of January 2007," while a passenger on a bus owned and operated by defendants, which "was being operated on Fifth Avenue at or near the bus stop at the[] Southwest corner of 33rd Street in Manhattan, said bus stopped and then went forward and then abruptly came to as final stop[, causing plaintiff] to be propelled in said bus and to violently hit the floor thereby sustaining severe permanent personal injuries." As courts may look to the evidence adduced at a hearing pursuant to General Municipal Law § 50-h to determine the sufficiency of a Notice of Claim (see D'Alessandro v New York City Tr. Auth., 83 NY2d 891, 893 [1994]), we recount the relevant evidence from the hearing in this case. Plaintiff, who was 84 years old at the time of the accident, testified that he was on his way to visit a friend who lived on 33rd Street between Fifth and Sixth Avenues and had transferred at 49th Street and Fifth Avenue from a crosstown bus. He then "took a Fifth Avenue bus that went downtown" but did not know the number of the bus. The bus, however, "was one of those relatively modern buses that has a[n] . . . elevated backside." As the bus approached the stop at 33rd Street, plaintiff got up from his seat. After the bus stopped and the doors opened, when plaintiff was about a foot from the front door preparing to exit, it "jerked forward violently," and plaintiff fell on his back in the aisle. At the time of the fall, plaintiff had been holding only his cane. Plaintiff was helped up and off the bus by other passengers. Believing he had only a bruise, he walked to his friend's apartment, which was five minutes away. After five or ten minutes, however, the pain was so bad he took a taxi to the hospital. He had broken five ribs and punctured a lung, and was admitted to the hospital. In relevant part, the statute requires that a notice of claim set forth "the time when, the place where and the manner in which the claim arose" (General Municipal Law § 50-e[2]). "

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In relevant part, the statute requires that a notice of claim set forth "the time when, the place where and the manner in which the claim arose" (General Municipal Law § 50-e[2]). "Reasonably read, the statute does not require those things to be stated with literal nicety or exactness" (Brown v City of New York, 95 NY2d 389, 393 [2000] [internal quotation marks [*2]omitted]). Rather, "[t]he test of the sufficiency of a Notice of Claim is merely whether it includes information sufficient to enable the city to investigate" (id. [internal quotation marks omitted]); "[n]othing more may be required" (id. [internal quotation marks omitted]).

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"Under these circumstances, the notice of claim was not insufficient due to plaintiff's inability to state whether the bus was an M1, M2, M3 or M4 or to recall any identifying information regarding the bus driver (cf. Hudson v New York City Tr. Auth., 19 AD3d 648, 649 [2005] [notice of claim not insufficient where plaintiff provided the time and location of accident, the route number of the bus that collided with her vehicle, and the manner in which her claim arose but incorrect information regarding the bus number])."