        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1205
CA 12-00356
PRESENT: SCUDDER, P.J., FAHEY, CARNI, VALENTINO, AND MARTOCHE, JJ.


IN THE MATTER OF CLAIROL DEVELOPMENT, LLC AND
CRANE-HOGAN STRUCTURAL SYSTEMS, INC.,
PETITIONERS-RESPONDENTS,

                    V                              MEMORANDUM AND ORDER

VILLAGE OF SPENCERPORT, JACK CROOKS, VILLAGE OF
SPENCERPORT BUILDING INSPECTOR, THEODORE WALKER,
VILLAGE OF SPENCERPORT MAYOR, KEITH O’TOOLE,
DEPUTY ATTORNEY VILLAGE OF SPENCERPORT, ZONING
BOARD OF APPEALS FOR VILLAGE OF SPENCERPORT,
ZONING BOARD OF APPEALS FOR TOWN OF OGDEN,
RESPONDENTS-APPELLANTS.


GALLO & IACOVANGELO, LLP, ROCHESTER (ANTHONY M. SORTINO OF COUNSEL),
FOR RESPONDENTS-APPELLANTS.

GATES & ADAMS, P.C., ROCHESTER (RICHARD T. BELL, JR., OF COUNSEL), FOR
PETITIONERS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Monroe County (David
Michael Barry, J.), entered October 14, 2010 in a proceeding pursuant
to CPLR article 78. The order granted petitioners’ motion for leave
to amend their pleadings.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying that part of petitioners’
motion with respect to the proposed first and second causes of action
and as modified the order is affirmed without costs.

     Memorandum: Respondents appeal from an order in a proceeding
pursuant to CPLR article 78 that granted petitioners’ motion for leave
to amend their petition. We reject respondents’ contention that
Supreme Court erred in failing to examine the merits of the proposed
amendment before granting the motion. A court “should not examine the
merits or legal sufficiency of the proposed amendment unless the
proposed pleading is clearly and patently insufficient on its face”
(Landers v CSX Transp., Inc., 70 AD3d 1326, 1327 [internal quotation
marks omitted]; see Lucido v Mancuso, 49 AD3d 220, 229), and here the
court properly determined that the proposed amendment was not clearly
and patently insufficient on its face. Contrary to respondents’
contention, the one-year and 90-day period contained in General
Municipal Law § 50-i is a statute of limitations to which the tolling
provision of CPLR 205 (a) applies, rather than a condition precedent
                                 -2-                          1205
                                                         CA 12-00356

to commencing a proceeding or an action (see Campbell v City of New
York, 4 NY3d 200, 201-202; Matter of Billman v Port Jervis School
Dist., 84 AD3d 1367, 1370). Thus, petitioners’ failure to plead
compliance with the one-year and 90-day period did not render the
proposed amended pleading insufficient on its face.

     Nevertheless, we agree with respondents that the court erred in
granting petitioners’ motion with respect to certain of the proposed
causes of action in the amended pleading. We therefore modify the
order accordingly. Proposed new causes of action are not time-barred
if those causes of action “ ‘merely add[ ] . . . new theor[ies] of
recovery arising out of transactions already at issue in th[e]
litigation’ ” (C-Kitchens Assoc., Inc. v Travelers Ins. Cos.
[Travelers Ins. Co.], 15 AD3d 905, 906; see CPLR 203 [f]). The
relation back doctrine, however, is inapplicable where the causes of
action “are based upon events that occurred after the filing of the
initial petition, rather than upon the transactions giving rise to the
[causes of action] in the initial petition” (Matter of New York
Foundling Hosp., Inc. v Novello, 47 AD3d 1004, 1006, lv denied 10 NY3d
708). Petitioners’ proposed first and second causes of action, which
relate to respondents’ alleged coercion in seeking consulting and
electric fees, and respondents’ alleged failure to accept a street
dedication and release a letter of credit, do not relate back to the
initial petition, which was based solely upon respondents’ alleged
failure to issue a building permit, and they are otherwise time-barred
based on petitioners’ failure to comply with the requirements in
General Municipal Law § 50-i. We conclude, however, that the third
cause of action related back to the petition, and it was also a proper
subject of the proposed amendment (see generally Matter of Upstate
Land & Props., LLC v Town of Bethel, 74 AD3d 1450, 1452; Matter of
Bolin v Nassau County Bd. of Coop. Educ. Servs., 52 AD3d 704, 705).
To the extent that the third cause of action asserts the violation of
42 USC § 1983 and seeks attorneys’ fees pursuant to 42 USC § 1988, we
note that respondents do not contend that compliance with the notice
of claim requirements in General Municipal Law §§ 50-e and 50-i is
necessary to recover with respect to that cause of action (see Felder
v Casey, 487 US 131, 134; Burton v Matteliano, 81 AD3d 1272, 1275, lv
denied 17 NY3d 703; Pendleton v City of New York, 44 AD3d 733, 738).
We also note that the claims pursuant to 42 USC §§ 1983 and 1988 are
subject to a three-year statute of limitations (see Rimany v Town of
Dover, 72 AD3d 918, 921, lv denied 15 NY3d 705), and respondents do
not contend that those claims are time-barred by that period of
limitations.

     Finally, respondents’ contention that petitioners failed to
provide reasoning for their delay in filing their motion for leave to
amend is raised for the first time in respondents’ reply brief and
thus is not properly before us (see generally Hann v Black, 96 AD3d
1503, 1505).


Entered:   November 16, 2012                    Frances E. Cafarell
                                                Clerk of the Court
