Summary
denying motion to amend notice of claim where "theories of false arrest, false imprisonment, malicious prosecution and conspiracy were not referred to either directly or indirectly in the notice of claim"
Summary of this case from Canete v. Metro. Transp. Auth.Opinion
October 8, 1992
Appeal from the Supreme Court, Bronx County (Herbert Shapiro, J.).
The IAS Court properly denied plaintiff's cross-motion to amend his IAS notice of claim so as to include theories of false arrest, false imprisonment, malicious prosecution and conspiracy that were not referred to either directly or indirectly in the notice of claim (Soto v City of New York, 161 A.D.2d 246). "The plaintiff's argument that these causes of action can be inferred from his cause of action alleging assault and battery is without merit. The fact that these alleged causes of action arose out of the same incident is not pivotal; rather, the nature of the claim and the theory of liability are determinative." (Mazzilli v City of New York, 154 A.D.2d 355, 357 [citation omitted].) We reinstate however, the second cause of action for violation of civil rights based on 42 U.S.C. § 1983 because compliance with notice of claim requirements is not prerequisite to a recovery on that theory (Felder v Casey, 487 U.S. 131; Matter of Rattner v Planning Commn., 156 A.D.2d 521, 525, lv dismissed 75 N.Y.2d 897).
Concur — Rosenberger, J.P., Ellerin, Kupferman and Kassal, JJ.