Summary
In Clark v. Foley, 240 A.D.2d 458 (2nd Dept. 1997), the Appellate Division affirmed the denial of a plaintiff's motion to amend, noting that "the plaintiffs motion, supported only by an affirmation of her attorney, was defective.
Summary of this case from Commissioners Ins. Fd. v. Liverpool Ctl. Sch. DistOpinion
June 9, 1997
Appeal from the Supreme Court, Richmond County (Leone, J.).
Ordered that the order is affirmed, with costs.
According to the allegations of the 1994, timely, verified complaint, the plaintiff was injured on September 1, 1991, when she fell from the porch of the defendant's Staten Island home as she tried to "distance herself" from a dispute between the defendant and two other individuals, Debra and Edith Rossetti. The original complaint charged that the plaintiff slipped on a greasy spot near a garbage can and fell off the porch, seven feet to the ground. As a result, the plaintiff allegedly fractured her right ankle.
By notice of motion dated February 22, 1996, the plaintiff sought leave to serve an amended complaint alleging that, while standing on the defendant's front porch, she had been the victim of an assault by Debra and Edith Rossetti, and that the defendant was negligent in retreating to the safety of his home without doing anything to protect her, and in failing to control the aggressive conduct of Debra and Edith Rossetti, despite his knowledge that the Rossettis had a history of harassing her. The amended complaint also alleged an entirely new injury, specifically, that as a result of weakness in her ankle which had been injured in this fall, the plaintiff fell from a ladder on June 23, 1993, and fractured a bone in her left forearm. The Supreme Court denied the plaintiff's motion and we now affirm.
Initially, we find that the plaintiff's motion, supported only by an affirmation of her attorney, who had no personal knowledge of the facts, was defective. The attorney's affirmation did not persuasively explain why the allegations of the amended complaint were not contained in the original complaint, nor did the plaintiff provide an affidavit demonstrating the merits of her proposed amendment. Therefore, the plaintiff was not entitled to be granted leave to serve an amended complaint (see, Mathiesen v. Mead, 168 A.D.2d 736; Smith v. Bessen, 161 A.D.2d 847; Motz v. Cuevas, 127 A.D.2d 637; Beekman v. Sylvan Lawrence, Inc., 111 A.D.2d 658).
In any event, the Supreme Court properly determined that the plaintiff's proposed amendment was time-barred, and did not fall within the relation back exception under CPLR 203 (f), as the original complaint did not give the defendant notice of the transactions or occurrences underlying the proposed amended complaint (see, DD Knits v. Grand Morgan Realty Corp., 213 A.D.2d 372; Jolly v. Russell, 203 A.D.2d 527; Brown v Vail-Ballou Press, 188 A.D.2d 972; see also, Clark v. Turner Constr. Co., 130 A.D.2d 454).
We have reviewed the plaintiff's remaining contentions and find them to be without merit.
Miller, J.P., Joy, Goldstein and Florio, JJ., concur.