Harding v. Harris

—Appeal from an order of the Supreme Court (Conway, J.), entered November 19, 1993 in Albany County, which, upon reargument, granted defendant City of Albany’s motion to dismiss the complaint against it.

Plaintiff commenced this action in December 1988 against defendants for damages caused to a building owned by plaintiff due to the failure of defendant Robert Harris to maintain a building adjacent to plaintiff’s building. Although defendant City of Albany was named as a defendant, the complaint requested no relief from the City and stated that the City was named because it may have an interest in the relief requested. An amended complaint served in May 1989, after the City had demolished Harris’ building in April 1989, also failed to allege any negligent acts on the part of the City. A notice of claim was served on the City in June 1989.

After the City moved to dismiss the complaint against it in August 1993, plaintiff moved to amend its complaint to in-*932elude for the first time allegations of negligence against the City. The City moved to dismiss the complaint as untimely and, upon reconsideration, Supreme Court granted the City’s motion. We agree with Supreme Court’s conclusion that plaintiffs cause of action against the City is untimely. Given the circumstances of this case, we find that the complaint gave no notice to the City of the occurrence to be proved pursuant to plaintiffs amended complaint, and the amendment therefore does not relate back to the complaint for the purposes of determining timeliness of the cause of action.

Mikoll, J. P., Mercure, Crew III, Yesawich Jr. and Peters, JJ., concur. Ordered that the order is affirmed, without costs.