The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge
OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
Plaintiff Vincent Parise ("Parise") brings this negligence action, in diversity, against the New York City Department of Sanitation ("Sanitation") seeking damages for personal injuries allegedly sustained from a workplace accident on July 16, 2002. In the same action, Parise's wife, Debra Parise, brings a derivative claim for loss of services. On June 21, 2005, Sanitation moved to dismiss the action for failure to state a claim upon which relief can be granted, pursuant to Fed. R. Civ. P. 12(b)(6) and 56(a), on the ground that Plaintiffs failed to file a legally sufficient notice of claim, as required by New York General Municipal Law ("GML") §50-e. Plaintiff cross-moved for leave to amend the notice of claim.
By order dated April 6, 2006, this court referred the motion to U.S. Magistrate Judge ("MJ") Kiyo A. Matsumoto for preparation of a Report and Recommendation ("R&R"). Because both parties submitted evidence beyond the pleadings and there were allegedly disputed issues of material fact, the magistrate judge considered Sanitation's motion as one for summary judgment pursuant to Fed R. Civ. P. 56(b) and 12(b) and requested that both parties file a Local Civil Rule 56.1 statement.
Plaintiffs apparently failed to do so.*fn1 R&R 2. At the oral arguments held before the magistrate judge on July 24, 2006, Plaintiffs' counsel conceded that there are no disputed issues of material fact.*fn2 Judge Matsumoto issued a R&R on August 10, 2006, recommending that this court grant Sanitation's motion and deny Plaintiffs' cross-motion for leave to amend the notice of claim. With respect to the cross-motion, the R&R questioned whether this court had jurisdiction to allow for the notice of claim to be amended, but because the R&R held that the notice of claim was deficient and that Sanitation was prejudiced by the deficiency, the R&R rejected the cross-motion on its merits. Plaintiffs filed timely objections to the R&R. Sanitation neither filed any objections nor a response to Plaintiffs' objections.
The court adopts the magistrate judge's R&R in its entirety for the reasons set forth below.
When reviewing a magistrate judge's report, a district judge must make a de novo determination with respect to those parts of the R&R to which any party objects. The district court may then "accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions." Fed. R. Civ. P. 72(b);28 U.S.C. § 636(b); See also United States v. Raddatz, 447 U.S. 667, 673-76 (1980).
The GML requires that, as a condition precedent to the commencement of an action against a municipality or any of its employees, a notice of claim be filed with the municipality within ninety days after the claim arises. See N.Y. Gen. Mun. L. §50-e(1)(a) (McKinney's 2006). The statute specifies that "the notice shall be in writing, sworn to by or on behalf of the claimant, and shall set forth: (1) the name and post-office address of each claimant, and of his attorney, if any; (2) the nature of the claim; (3) the time when, the place where and the manner in which the claim arose; and (4) the items of damage or injuries claimed to have been sustained." N.Y. Gen. Mun. L. §50-e(2) (2006). Notice of claim requirements are "construed strictly by New York state courts." Hardy v. New York City Health & Hosp. Corp., 164 F.3d 789, 794 (2d Cir. 1999). The notice of claim requirements of the GML are jurisdictional, and the failure to comply ordinarily requires dismissal. Mroz v. City of Tonawanda, 999 F. Supp. 436, 454 (W.D.N.Y. 1998); Davidson v. Bronx Mun. Hosp., 64 N.Y.2d 59, 484 (1984).*fn3 Courts reviewing the sufficiency of a notice of claim are instructed that they should "focus on the purpose served by a notice of claim: whether based on the claimant's description municipal authorities can locate the place, fix the time and understand the nature of the accident." Brown v. City of New York, 95 N.Y.2d 389, 392 (2000). Furthermore, the purpose of the statute is "to afford the municipality an adequate opportunity to investigate the claim in a timely and efficient manner and, where appropriate, to settle claims without the expense and risks of litigation." Hardy, 164 F.3d at 794.
Where a notice of claim has been served but is deficient because it does not comport with the requirements of GML §50-e(2), the statute allows for corrective action to be taken by the plaintiff. The GML states "at any stage of an action or special proceeding . . . a mistake, omission, irregularity or defect made in good faith in the notice of claim required to be served by this section . . . 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. See N.Y. Gen. Mun. L. § 50-e(6) (McKinney's 2006).*fn4 The court need not determine any of the factual issues surrounding Plaintiff's injury, including causation and/or liability, at this time. Rather, since the parties agree that the GML §50-e notice of claim was deficient, the issue is whether the deficiency was made in good faith and, if so, whether Sanitation was prejudiced.
Summary judgment is appropriate "where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The court must view all facts in the light most favorable to the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) . "The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247--48. In order to prove that a genuine issue of material fact exists, a non-moving party "may not rest upon the mere allegations or denials of the pleading[s]," but must by affidavit or otherwise "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The moving party bears the initial burden of demonstrating an absence of genuine issues of material fact. See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). If the initial burden is met, the non-moving party "must produce specific facts indicating that a genuine issue of fact exists. If the evidence [presented by the non-moving party] is merely colorable, or is not significantly probative, summary judgment may be granted." Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998) (internal quotations and citations omitted) (alteration in original). Even where there appears to be a genuine issue of material fact, the Supreme Court has instructed that "[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott v. Harris, 127 S.Ct. 1769, 1776 (2007).
Judge Matsumoto, while noting it is "curious" that Plaintiff recollection of the events seem to have "formulated over time rather than faded," found that the deficiencies in the notice of claim were not the result of bad faith, a finding the court adopts. (R&R at 16). However, Judge Matsumoto also found that Sanitation was prejudiced by the notice of claim's failure to state a cause for the accident, and granted summary judgment to Sanitation. Plaintiffs object to Judge Matsumoto's finding and assert that there is no prejudice because (1) Sanitation had located all the witnesses it needed to assess the condition of the ramp as it was on the day of the accident; (2) even in the absence of a witness, the condition of the ramp was well documented by other means; (3) Sanitation was not prejudiced by its inability to retain an expert to examine the ramp; (4) the 50-h hearing cured any deficiency in the notice of claim; (5) Sanitation acquired actual knowledge of Plaintiffs' claims through Andrew T. Santasine's ("Santasine") accident report; (6) Sanitation acquired actual knowledge of Plaintiffs' claims through Santasine's and Parise's depositions; and (7) Sanitation was made aware of the cause of the accident though the complaint.
Upon a de novo review of those portions to which Plaintiffs object, the court adopts the R&R in its entirety, and finds that there are no genuine issues of material fact regarding whether Sanitation was prejudiced by the Plaintiffs' failure to assert that moss or algae, lack of handrails, skidproof paint and/or block sand paper on the ramp caused the accident. Moreover, as Judge Matsumoto found, and for the reasons set forth below, Sanitation was prejudiced in several ways due to the deficiencies in the notice of claim. Accordingly, summary judgment in defendant's favor is appropriate.
Defendant's Ability to Locate Witnesses
Plaintiffs allege that Sanitation was not prejudiced by the deficient notice of claim because, even with the notice of claim's omission of the cause of the accident, it had located witnesses that could have testified regarding the true condition of the ramp on the day of the accident. It is true that within ninety days of the accident the Sanitation had at least one witness who knew of the exact condition of the ramp on the day of the accident. (R&R 4, n1). However, the purpose of GML §50-e is not simply to allow a defendant to locate witnesses, but rather to allow it to investigate the claim "timely and efficiently." See Heiman v. City of New York, 85 A.D.2d 25 (2nd Dept 1982). The difference is significant because the fact that the defendant knows of the existence of witnesses does little to facilitate the timely and efficient investigation of the claim.*fn5 Rather, the claim can be investigated only if the defendant knows what questions to ask of the witnesses and can make an informed determination as to whether to hire experts or conduct a forensic examination of the scene. For this, a defendant must rely upon the information provided by the notice of claim, specifically the alleged cause of the accident and the location of the accident. Thus, courts have found that where a "notice was utterly silent regarding causation, i.e. the nature of the defect which alleged caused plaintiff to fall . . . that fact alone made it impossible for the city to conduct its investigation." Caselli v. City of New York, 105 A.D.2d ...