MIRIAM D'ALESSANDRO v. NEW YORK CITY TRANSIT AUTHORITY,
83 N.Y.2d 891, 636 N.E.2d 1382, 613 N.Y.S.2d 849 (1994).
May 10, 1994
2 No. 63 (1994 NY Int. 084)
Decided May 10, 1994
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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
MEMORANDUM:
The order of the Appellate Division should be reversed, with costs,
and the case remitted to Supreme Court for further proceedings in
accordance with this memorandum.
On January 13, 1988, plaintiff was waiting for the B1 bus in Brooklyn.
Due to the accumulation of snow and ice at the sidewalk bus stop,
plaintiff was forced to wait on the street. Allegedly, an approaching
bus pulled up too close to her, causing her to fall as she attempted
to jump back toward the sidewalk to avoid being hit by the bus.
Plaintiff sustained a fractured and dislocated elbow and other
injuries as the result of her fall and sought damages against
defendant in negligence.
Plaintiff's notice of claim, filed on February 3, 1988, did not
identify the bus or bus driver allegedly involved or the nature of the
accident. On February 24, 1988, plaintiff testified at a hearing held
pursuant to General Municipal Law § 50-h. A summons and complaint was
subsequently served upon defendant on June 3, 1988.
On January 10, 1991, after jury selection, defendant moved to dismiss
the complaint because of plaintiff's failure to serve an adequate
notice of claim, contending that it had been prejudiced in
investigating the claim because the notice of claim failed to specify
the bus or bus driver involved in the accident or the nature of the
accident. Plaintiff contended that if the notice was insufficient it
should be considered with the hearing testimony. Supreme Court,
analyzing only the notice of claim, granted defendant's motion to
dismiss the complaint, stating:"(T)he notice of claim stands by
itself, does it not, alone. Not with the hearing. Not with anything
else. The notice of claim that you must file under the law must be
sufficient within the four corners of that document." The Appellate
Division affirmed. In determining whether to grant the motion to
SNIPPETS:
This memorandum is uncorrected and subject to revision before publication in the New York
The order of the Appellate Division should be reversed, with costs, and the case remitted to
Due to the accumulation of snow and ice at the sidewalk bus stop, plaintiff was forced to
Allegedly, an approaching bus pulled up too close to her, causing her to fall as she
Plaintiff sustained a fractured and dislocated elbow and other injuries as the result of her
On February 24, 1988, plaintiff testified at a hearing held pursuant to General Municipal Law
On January 10, 1991, after jury selection, defendant moved to dismiss the complaint because
In determining whether to grant the motion to dismiss the complaint, the courts below
In making this determination of prejudice, the court may look to evidence adduced at a
Without expressing any view regarding the validity of the trial court's exercise of
Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.
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