Infurna v. City of New York

—Order, Supreme Court, New York County (Karla Moskowitz, J.), éntered March 12, 1997, which denied plaintiff’s motion to amend the complaint, unanimously affirmed, without costs. Plaintiff’s complaint alleges that his decedent died from injuries sustained when he fell out of his bed because of defendant nursing home’s negligent maintenance or use of the bed’s guard rails. Plaintiff’s proposed amendment would allege that his decedent died from physical abuse inflicted by one or more of defendant’s employees, and assert causes of action for assault and negligent hiring and retention. The proposed causes of action were properly rejected as time-barred and not saved by the relation back exception of CPLR 203 (f). Plaintiff’s original allegations of negligence in the maintenance or use of bed guard rails did not give notice of the present allegations that defendant’s employees attacked the decedent (see, Clark v Foley, 240 AD2d 458, lv dismissed 91 NY2d 921) and had a propensity for assaultive behavior of which defendant was aware (see, Detone v Bullit Courier Serv., 140 AD2d 278, lv denied 73 NY2d 702). Concur — Nardelli, J. P., Tom, Lerner, Rubin and Friedman, JJ.