Lawless v. City of Buffalo

177 A.D.2d 1007, 578 N.Y.S.2d 27, 1991 N.Y. App. Div. LEXIS 15775

Opinion

Order unanimously reversed on the law without costs and motion granted. Memorandum: Supreme Court erred by denying plaintiffs motion to amend his complaint to add a cause of action pursuant to 42 USC § 1983 on the ground that plaintiff had failed to comply with the notice of claim requirements of General Municipal Law §§ 50-e and 50-i. The Supreme Court of the United States has held that notice of claim requirements do not apply to causes of action brought pursuant to 42 USC § 1983 in State courts (Felder v Casey, 487 US 131; see also, Meiselman v Richardson, 743 F Supp 143; Matter of Rattner v Planning Commn., 156 AD2d 521, 525, lv dismissed 75 NY2d 897; Matter of Zurat v Town of Stockport, 142 AD2d 1, 3).

Plaintiffs claim pursuant to 42 USC § 1983 was not time-barred. Plaintiffs original complaint gave notice of the transactions and occurrences to be proved pursuant to the amended pleading (CPLR 203 [e]). Plaintiff sought to add only a new theory of recovery based upon the same facts alleged in his original complaint. That is permissible (see, Bilhorn v Farlow, 60 AD2d 755; Luisi v JWT Group, 128 Misc 2d 291, 295). (Appeal from Order of Supreme Court, Erie County, Dadd, J. —Amended Complaint.) Present—Doerr, J. P., Denman, Boomer, Green and Davis, JJ.