Opinion
March 2, 1987
Appeal from the Supreme Court, Nassau County (Meade, J.).
Ordered that the order is reversed, in the exercise of discretion, without costs or disbursements, the defendant's motion is denied, the plaintiffs' cross motion for leave to serve an amended notice of claim and amended complaint is granted, and the plaintiffs' time to serve their amended notice of claim and amended complaint is extended until 20 days after service upon them of a copy of this decision and order, with notice of entry.
The plaintiffs cross-moved pursuant to General Municipal Law § 50-e (6) for leave to serve an amended notice of claim to correct the date of the accident listed in their original notice of claim. The defendant does not claim that the error was made in bad faith, nor has the defendant demonstrated any actual prejudice, and there is no reason to presume the existence of prejudice from this record. In fact, while the defendant claims that its investigative efforts have been hampered by the incorrect date, it does not appear that any investigation was ever attempted. Under the circumstances of this case, the plaintiffs should have been granted leave to serve an amended notice of claim (see, Evers v. City of New York, 90 A.D.2d 786; Mayer v. City of New York, 80 A.D.2d 799; Sanchez v. City of New York, 25 A.D.2d 731).
The plaintiffs' cross motion also sought leave to serve an amended complaint to plead compliance with Public Authorities Law § 1276 (1). The defendant has failed to allege any prejudice in relation to this proposed amendment, but rather, appears to argue that failure to plead compliance is a jurisdictional defect and the complaint must be dismissed. This is incorrect (see, Fitzgibbon v. County of Nassau, 112 A.D.2d 266; Kelly v. Kane, 98 A.D.2d 861; Niemczyk v. Pawlak, 76 A.D.2d 84; Snyder v. Board of Educ., 42 A.D.2d 912). In the absence of any demonstrable prejudice to the defendant it was an abuse of discretion to deny the plaintiffs leave to serve an amended complaint (see, Fitzgibbon v. County of Nassau, supra). Mollen, P.J., Weinstein, Eiber and Sullivan, JJ., concur.