Summary
finding that amendments to a notice of claim that asserted new theories of liability were time barred
Summary of this case from Keating v. GaffneyOpinion
March 13, 1995
Appeal from the Supreme Court, Suffolk County (Oshrin, J.).
Ordered that the order is reversed, on the law, with costs, and the appellant's motion is granted in its entirety, the third and fifth causes of action are dismissed insofar as they are asserted against the appellant, all cross-claims against the appellant are dismissed, and the plaintiffs' cross motion for leave to serve an amended notice of claim is denied.
We agree with the appellant that the Supreme Court erred by allowing the plaintiffs to amend their notice of claim to assert new theories of liability. The proposed amendments to the notice of claim would substantially alter the nature of the plaintiffs' claims. Such new theories are time barred (see, General Municipal Law § 50-e), and are not within the purview of General Municipal Law § 50-e (6) (see, Demorcy v. City of New York, 137 A.D.2d 650; Dale v. Half Hollow Hills School, 37 A.D.2d 778; cf., Matter of Halperin v. City of New York, 127 A.D.2d 461).
In addition, since the record contains no evidence that the appellant had any knowledge of codefendant Richard Houdek's alleged dangerous proclivity and propensity for vicious and immoral behavior or that the appellant exercised any custody or supervision over him, the appellant had no duty to warn the plaintiffs of Houdek's alleged dangerous proclivity and propensity for vicious and immoral behavior (see generally, Pratt v. Robinson, 39 N.Y.2d 554; Hauser v. North Rockland Cent. School Dist., 166 A.D.2d 553; Schlecker v. Connetquot Cent. School Dist., 150 A.D.2d 548; Rock v. Central Sq. School Dist., 113 A.D.2d 1008). Bracken, J.P., Rosenblatt, Lawrence, Krausman and Goldstein, JJ., concur.