Hussein v. City of New York , 696 N.Y.S.2d 209 ( 1999 )

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Hutcherson, J.), dated December 8, 1997, which granted the defendants’ motion to dismiss the complaint and failed to decide their application for Justice Hutcherson to recuse himself. By decision and order of this Court dated January 19, 1999, the appeal was held in abeyance and the appellants were directed to file a proper appendix (see, Hussein v City of New York, 257 AD2d 605). The appellants have complied with that order.

Ordered that the appeal from so much of the order as failed to decide the appellants’ application for Justice Hutcherson to recuse himself is dismissed (see, Hill v Andron Constr. Corp., 256 AD2d 549; Katz v Katz, 68 AD2d 536); and it is further,

Ordered that the order is affirmed insofar as reviewed; and it is further,

Ordered that the respondents are awarded one bill of costs.

The Supreme Court properly granted the defendants’ motion to dismiss the complaint on the ground that the notice of claim failed to describe the manner in which the accident occurred (see, Frazer v New York City Hous. Auth., 198 AD2d 329; General Municipal Law § 50-e [2]). The plaintiffs’ notice of claim and complaint, both served in 1993, and their bill of particulars dated February 17, 1994, attributed the cause of the accident to inadequate lighting, while the injured plaintiffs deposition testimony in January 1997 established that he was injured because an allegedly malfunctioning door slammed into him.

The plaintiffs’ request to amend their notice of claim and the complaint almost four years after the accident was properly denied, as the defendants were unable to conduct a meaningful investigation of the merits of the plaintiffs’ claim (see, e.g., DiMenna v Long Is. Light. Co., 209 AD2d 373; Moore v New York City Tr. Auth., 189 AD2d 862; General Municipal Law § 50-e [6]).

The plaintiffs’ remaining contentions are without merit. Bracken, J. P., O’Brien, Sullivan and Goldstein, JJ., concur.