The instant action seeks damages for personal injury Plaintiff allegedly sustained on July 3, 2010 at the intersection of 170th Street and Jerome Avenue, Bronx, New York. Plaintiff alleges that while waiting at a bus stop at the intersection of 170th Street and Jerome Avenue, she was forced off the sidewalk and fell in a hole in the ground and sustained personal injury.
Plaintiff served on Defendant a Notice of Claim on or about August 18, 2010. In the Notice, Plaintiff alleged that the nature of the claim arose from Defendant’s negligence “in the maintenance of the sidewalk/crosswalk located at the intersection of 170th street and Jerome Avenue, Bronx, New York.” On October 29, 2010,Plaintiff submitted to a hearing. After the hearing, by notice dated January 3, 2011 the City of New York Office of the Comptroller (hereinafter “Comptroller’s office”) informed Plaintiff’s counsel that the claim was disallowed pursuant to § 7-210 of the New York City Administrative Code. Thereafter, according to Plaintiff’s opposition papers, her attorney’s office contacted the Comptroller’s office and explained that the sidewalk defect was not private landowner property but rather was a piece of sidewalk located within the bus stop, which is City of New York maintained property.
Subsequently, according to plaintiff’s opposition papers her counsel’s office was instructed by the Comptroller’s office to file an amended notice of claim. Thus, on February 7, 2011 Plaintiff served Defendant an amended Notice of Claim in which she alleges that the nature of the claim arose from Defendant’s negligence in the maintenance of the street annexed to the bus stop at the intersection of 170th street and Jerome Avenue, Bronx, New York. Nevertheless, by notice dated February 10, 2011 the Comptroller’s office informed the plaintiff that her amended notice of claim was disallowed because it was not filed within (90) days from the date of the occurrence as required by General Municipal Law Section 50-e.
Subsequently, Plaintiff filed a motion on June 9, 2011 pursuant to CPLR § 3025(c) and General Municipal Law § 50-e (5) for leave to file an amended notice of claim, so it can clarify that the sidewalk defect was not private landowner property but rather was a piece of sidewalk located within the bus stop which is City of New York maintained property. By Order dated July 21, 2011 the court granted Plaintiff’s motion on default and instructed Plaintiff to serve the amended notice of claim within thirty (30) days of entry of this order by the clerk. Contrary to Defendant’s allegation that there is no record of plaintiff ever filing an original bite summons and complaint, a review of the Court records indicates that the Plaintiff filed the original summons and complaint and the amended notice of claim with the county clerk on August 3, 2011 under the index number 260482/11, the same index number the motion to amend the notice of claim was made under.
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