Powell v. Town of Gates

Marsh, J. Petitioner Theodore W. Powell was severely injured in an accident involving a bus owned by the Gates-Chili School District at the intersection of Route 204 and Chili Avenue in the Town of Gates, January 22, 1970. April 10, 1970 a notice of claim was served by the petitioners on the Town of Gates. The notice of claim alleges: “5. At the time and place aforesaid, the said claimant, Theodore W. Powell, while a pedestrian and as a result of the negligent operation of a school bus, owned by the said Town, sustained the injuries hereinafter alleged. “ 6. The accident aforesaid and the injuries and negligent damages alleged were caused wholly and solely by the negligence of said Town, its officers, agents and servants, and that the said Town was otherwise careless in the premises. ’ ’ Twenty days later on April 30,1970 the town’s representative wrote petitioners’ attorney: “ Our investigation reveals that the school bus involved was owned and operated by an employee of the Gates-Chili School District, a separate and distinct entity from the Town of Gates. Based upon this we find Item No. 5 of your notice incorrect. Further, we find this alleged incident occurred on a State maintained highway. ’ ’ Thereupon by notice of motion dated May 22, 1970 petitioners sought an order granting leave to serve an amended notice of claim alleging: " 5. That the Town of Gates in fulfilling its duty of properly maintaining said highways as regards the removal of snow and ice negligently failed to remove snow and ice and to sand or salt the surfaces of said highways.” [222] In every other respect the original claim and the proposed amended claim are identical. Subdivision 6 of section 50-e of the General Municipal Law, so far as applicable provides: “ Any time after the day of service of the notice of claim and at or before the trial of an action or the hearing upon a special proceeding to which the provisions of this section are applicable, a mistake, omission, irregularity or defect made in good faith in the notice of claim required to be served by this section, not pertaining to the manner or time of service thereof, may be corrected, supplied or disregarded, as the case may be, in the discretion of the court provided it shall appear that the other party was not prejudiced thereby.” The clear purpose of section 50-e of the General Municipal Law, containing a 90-day notice provision is to require prompt notice of claims to a public corporation so as to permit investigation to be made promptly. While the original notice of claim made specific reference to the claim of negligence in the operation of the school bus, it did identify the time and place of the alleged negligence of the town and included the general allegation that the ' ‘ Town was otherwise careless in the premises.” The letter from the representative of the town directed to the claimants indicated that the notice had been construed as referring to negligence of the town in maintaining the highway and purported to identify the public authority responsible for the maintenance of the highway at the point of the accident. The test of the sufficiency of a notice to avoid prejudice to a municipality as stated in Widger v. Central School Dist. (18 N Y 2d 646) and Rivero v. City of New York (290 N. Y. 204) is whether the notice sufficiently informed the municipality of the nature of the claim, and of the time when, the place where, and the manner in which the claim arose so as to enable the municipality to investigate the claim of negligence. In view of the fact that the original notice informed the town of the place, time, and manner in which the claim arose as well as the nature of the claim, and further, in view of the acknowledgment by the town that it had construed the claim as involving the maintenance of the highway, there would not appear to be substantial prejudice to the town. The prompt action of claimants in moving within 30 days of the expiration of the notice period to amend the notice warranted the exercise of the court’s discretion in granting the motion for leave to effect service of an amended notice of claim subsequent to the time limited by statute. The order should be affirmed.