Gordon v. City of New York

79 A.D.2d 981, 434 N.Y.S.2d 478, 1981 N.Y. App. Div. LEXIS 9871

Opinion

In an action, inter alia, to recover damages for personal injuries, plaintiff appeals from an order of the Supreme Court, Kings County, dated April 15, 1980, which denied his motion to permit a correction of his notice of claim and to strike certain affirmative defenses. Order affirmed, without costs or disbursements. Under the facts of the instant case, Special Term properly denied plaintiff’s motion, pursuant to subdivision 6 of section 50-e of the General Municipal Law, to “correct” his notice of claim by adding to its allegations of assault and/or the use of excessive force, further allegations that his damages had been the product of defendant’s negligence. Such an amendment would have substantially altered the nature of the plaintiff’s claim by adding thereto a new theory of liability not previously interposed. Amendments of a substantive nature are not within the purview of the cited subdivision (see Dale v Half Hollow Hills School, Cent. School Dist. No. 5, 37 AD2d 778; see, also, Alaxanian v City of Troy, 69 AD2d 937; Colena v City of New York, 68 AD2d 898, 900). Mangano, J.P., Gibbons, Gulotta and O’Connor, JJ., concur.