Akeem Fleming, Plaintiff–Appellant, v. << (2011)

-against-

City of New York, et al.,

Defendants–Respondents

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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 AD3d 334, 335 [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 [2001] ).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK