KARCZEWSKI v. SHARPE (1999)

Supreme Court, Appellate Division, Second Department, New York.

Danuta KARCZEWSKI, appellant, v. Steven J. SHARPE, respondent, et al., defendant.

Decided: April 26, 1999

GUY JAMES MANGANO, P.J., FRED T. SANTUCCI, GABRIEL M. KRAUSMAN and ANITA R. FLORIO, JJ.

Mitchell Gittin, Jericho, N.Y., for appellant. Wortman, Fumuso, Kelly, DeVerna & Snyder, Hauppauge, N.Y. (Scott G. Christesen of counsel), for respondent.

In an action, inter alia, to recover damages for assault and battery, the plaintiff appeals from an order of the Supreme Court, Suffolk County (D'Emilio, J.), dated April 2, 1998, which denied her motion for leave to amend her complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff's motion for leave to amend her complaint to assert a cause of action alleging a violation of Executive Law § 296(2)(a) was properly denied as it was made after the expiration of the three-year Statute of Limitations under CPLR 214(2). Furthermore, the cause of action alleging a violation of Executive Law § 296(2)(a) cannot relate back to the filing of the original complaint as that action was not timely commenced (see, Maldonado v. Maryland Rail Commuter Serv. Admin., 239 A.D.2d 740, 657 N.Y.S.2d 510, affd. 91 N.Y.2d 467, 672 N.Y.S.2d 831, 695 N.E.2d 700; Owens v. Palm Tree Nursing Home, 50 A.D.2d 865, 376 N.Y.S.2d 946).

MEMORANDUM BY THE COURT.

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