Fleming v. City of New York

89 A.D.3d 405, 931 N.Y.2d 866

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 1, 2011
• Status: Published

Opinion

The trial court correctly dismissed plaintiff’s negligence claims as precluded because that theory of liability was not asserted in the original notice of claim, in which plaintiff asserted that he was injured as a result of an intentional assault by the corrections officer (see Garcia v O’Keefe, 34 AD3d 334, 335 [2006]). By the same token, the court correctly denied plaintiffs motion to add the negligence claims to the notice of claim by amendment under General Municipal Law § 50-e (6). Any amendment that creates a new theory of liability is not within the purview of that provision (see White v New York City Hous. Auth., 288 AD2d 150 [2001]). Concur — Gonzalez, J.E, Tom, Sweeny and Renwick, JJ.