Santana v. New York City Transit Authoriy (88 A.D.3d 539, 2011)

The court should not have granted plaintiffs’ motion for leave to amend the notice of claim pursuant to General Municipal Law § 50-e (6). Flaintiffs did not merely seek to supplement the original claim, but rather, impermissibly sought to change the theory of liability from a fall on the stairs due to snow, ice or slush to a fall due to a loose metal tread (see Torres v New York City Hous. Auth., 261 AD2d 273, 275 [1999], lv denied 93 NY2d 816 [1999]). Moreover, defendant would be prejudiced by the amendment since the original notice of claim was insufficient to allow them to effectively conduct a meaningful investigation of plaintiffs’ amended claim (see id. at 274-275).

In view of the foregoing, we need not reach the merits of plaintiffs’ motion for leave to file a late notice of claim. Concur— Mazzarelli, J.E, Moskowitz, Acosta, Renwick and DeGrasse, JJ.