Opinion
2011-11-1
Akeem FLEMING, Plaintiff–Appellant,v.CITY OF NEW YORK, et al., Defendants–Respondents.
Belovin & Franzblau, LLP, Bronx (David A. Karlin of counsel), for appellant.Michael A. Cardozo, Corporation Counsel, New York (Janet L. Zaleon of counsel), for respondents.
Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered August 26, 2010, which granted defendants' motion to dismiss all causes of action sounding in negligence, and denied plaintiff's cross motion to amend his notice of claim to include the stricken negligence claims, unanimously affirmed, without costs.
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 A.D.3d 334, 335, 825 N.Y.S.2d 38 [2006] ). By the same token, the court correctly denied plaintiff's 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 A.D.2d 150, 734 N.Y.S.2d 11 [2001] ).
GONZALEZ, J.P., TOM, SWEENY, RENWICK, JJ., concur.