Plaintiff commenced this action seeking $18,195.62 in damages to a car allegedly incurred when the car was hit by a fire truck in December of 2015.1PROCEDURAL HISTORYPlaintiff served a notice of claim on or about January 8, 2016.On March 17, 2017, Plaintiff filed the summons and complaint.Defendants appeared by counsel and filed an answer on April 10, 2017. The answer asserted defenses including that the named Defendants are not sueable entities, and that the Defendants are immune from suit for the exercise of discretion in the performance of their duties.After issue was joined, the procedural history is muddled. The court file has been lost. Essentially it appears that the motion and cross-motion were initially denied for failure to appear on September 28, 2017 by the court (Ramirez, J).In the spring of 2018, pending motions or the action was marked as submitted to Judge Sharpe. The matter remained with this marking for a year.On June 3, 2019, the parties filed a stipulation with Judge Sharpe agreeing to restore the motions to the calendar for a decision on the merits.On June 4, 2019, Judge Sharpe assigned the motion and cross-motion to this court for determination and the matter was marked submitted. The motion and cross-motion are consolidated herein for disposition, and granted to the extent set forth below.THE PENDING MOTIONSThere are two motions pending before the court. Defendants’ motion to dismiss pursuant to CPLR §3211(a)(7) and Plaintiff’s cross-motion for leave to amend the complaint to reflect the City of New York and “John” Jacovia as Defendants.“On a motion to dismiss the complaint pursuant to CPLR§3211 (a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept the facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory (Leon v. Martinez, 84 NY2d 83, 87; see also 511 W. 232nd Owners Corp. v. Jennifer Realty, Corp., 98 NY2d 144).”§396 of the New York City Charter provides that “(a)ll actions and proceedings for recovery of penalties for the violation of any law shall be brought in the name of the City of New York and not in that of any agency, except otherwise provided by law.”It is undisputed that pursuant to §396 of the New York City Charter, neither the City Comptroller nor the Fire Department of New York City are subject to suit. Plaintiff now acknowledges that said parties are not proper and moves to amend the complaint to “reflect” the proper defendants as the City of New York and “John” Jacovia, a firefighter employed by the City of New York who was allegedly driving the fire truck that hit the vehicle of the subrogee.Under General Municipal Law §50 — e, a notice of claim against a municipality is required to be filed within 90 days of the incident giving rise to the claim.“The point of the notice of claim requirement of General Municipal Law §50 — e is to ensure the municipal authority was given enough information about the accident to ‘locate the place, fix the time and understand the nature of the accident’ (Brown v. City of New York, 95 NY2d 389, 393). The operative concern in considering whether a notice of claim is sufficient to cover a particular claim is whether the notice provided enough information to enable authorities to ‘investigate, collect evidence and evaluate the merit of a claim’ (id. at 392). The critical point is whether the defendant is prejudiced by the inclusion of matter not contained in the notice (see Torres v. New York City Hous. Auth., 261 AD2d 273, 274, lv denied 93 NY2d 816).”Carter v. City of New York, 6 Misc 3d 1007(A), aff’d, 38 AD3d 702, 832 N.Y.S.2d 630 (2007)General Municipal Law §50 — e(1)(a) requires timely service of a notice of claim as a condition precedent to an action against Defendant (Herrera v. Duncan, 13 AD3d 485, 485), and provides in pertinent part:In any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action or special proceeding against a public corporation, as defined in the general construction law, or any officer, appointee or employee thereof, the notice of claim shall comply with and be served in accordance with the provisions of this section within ninety days after the claim arises.The intent of the requirement is to protect against unfounded claims and to afford the municipality an adequate opportunity to explore the merits of the claim, close in time to the occurrence of the underlying incident (Porcaro v. City of New York, 20 AD3d 357, 357-58). The notice requirement is not intended to operate to frustrate the rights of litigants with legitimate claims (Camacho v. City of New York, 187 AD2d 262, 263).NY Gen. Mun. Law §50-e (6) provides:At any time after the service of a notice of claim and at any stage of an action or 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 Court of Appeals has described this statutory provision as “…the broadest kind of provision giving the courts discretion, in the absence of prejudice to correct, supply or disregard a good faith mistake, omission, irregularity or defect” pertaining to any issue other than service (Winbush v. City of Mount Vernon 306 NY 327, 331).Based on the foregoing, the court finds that the proper Defendant in this action is the City of New York, and Plaintiff’s cross-motion to amend the complaint to reflect the City of New York as a party is granted. There is no prejudice, the City was timely put on notice and is united in interest with the Fire Department as pertains to this claim (Romanelli v. City of New York 233 AD2d 310; Allen-David v. New York City Fire Department 2010 WL 9592994; Buran v. Coupal 87 NY2d 173).The motion to dismiss as against The Fire Department and the City Comptroller is also granted.However, as to “John” Jacovia the motion to amend the complaint and include him as a party is denied. There is no allegation that gives rise to individual liability on the part of the proposed defendant, the complaint does not allege that he was not acting within the scope of his employment when driving the truck (NY Gen. Mun. Law §50-c), and he had no prior notice that he might be a party in this action.CONCLUSIONDefendant’s motion to dismiss the complaint as to the Fire Department and the Comptroller is granted.Plaintiff’s cross-motion to amend the complaint is only granted to the extent of allowing leave to add the City of New York as a party and is otherwise denied.Plaintiff shall serve a supplemental summons and amended complaint within 30 days from the entry of this decision.This constitutes the decision and order of the Court.Dated: June 4, 2019New York, New York
