Lawless v. City of Buffalo

Appellate Division of the Supreme Court of New York

Lawless v. City of Buffalo

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

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 15, 1991

StatusPublished

Cited by4 cases

This text of 177 A.D.2d 1007 (Lawless v. City of Buffalo) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lawless v. City of Buffalo, 177 A.D.2d 1007, 578 N.Y.S.2d 27, 1991 N.Y. App. Div. LEXIS 15775 (N.Y. Ct. App. 1991).

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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 [1008]*1008brought 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.

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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 [1008]*1008brought 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.

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Bluebook (online)

177 A.D.2d 1007, 578 N.Y.S.2d 27, 1991 N.Y. App. Div. LEXIS 15775, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lawless-v-city-of-buffalo-nyappdiv-1991.

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