Majority
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
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.
Cases cited
- Felder v. Casey 487 US 131 p. 1008
- Rattner v. Planning Commission of Village of Pleasantville 156 AD2d 521 at 525 p. 1008
- Zurat v. Town of Stockport 142 AD2d 1 at 3 p. 1008
- Luisi v. JWT Group, Inc. 128 Misc 2d 291 at 295 p. 1008