Appeal from an order of the City Court of Mount Vernon, Westchester County (Adam Seiden, J.), entered August 19, 2005. The order granted the motion by defendants Anker Management, Vernon Manor Coop Section I and Richard McCullough for summary judgment and denied plaintiff's cross motion seeking, inter alia, leave to amend the complaint.

Order affirmed without costs.

The action was commenced by the filing of a summons with notice on May 20, 2002 (see CPLR 304) in Supreme Court. The action was subsequently removed to the City Court of Mount Vernon pursuant to CPLR 325 (d). It is undisputed that the incident where plaintiff was allegedly "verbally and physically attacked in her home by trespasser, management Vernon Manor" occurred on May 11, 2001. The claims for assault and battery also accrued on May 11, 2001 when defendant McCullough visited plaintiff's apartment. The libel and slander claims accrued on May 11, when the supporting depositions to the criminal complaint charging plaintiff [*2]with harassment were published. Since more than one year elapsed before plaintiff commenced the action, said claims were properly dismissed pursuant to CPLR 215 (3). Moreover, the summons with notice failed to inform defendants of a cause of action for malicious prosecution (see CPLR 305 [b]). Thus, this cause of action was not timely commenced when plaintiff asserted the claim for the first time in the complaint after the statute of limitations expired (see CPLR 215 [3]; Dreger v New York State Thruway Auth., 81 NY2d 721 [1992]; Mallory v State, 196 AD2d 925, 926 [1993]). The cause of action for false arrest, although timely commenced, was properly dismissed since probable cause for the arrest was established by the defendants (see Strange v County of Westchester, 29 AD3d 676, 677 [2006]). Furthermore, the claim for harassment must be dismissed since New York does not recognize a civil cause of action for harassment (Hartman v 536/540 E. 5th St. Equities, Inc., 19 AD3d 240 [2005]).

As to the negligence claim that defendant Vernon Manor Coop Section 1 (Vernon Manor) did not protect her from an attacker, plaintiff's allegations are belied by her own affidavit submitted in opposition to the defendants' motion wherein she admits that she attacked defendant McCullough (see Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 933 [1999]). Under the circumstances, defendant Vernon Manor cannot be held vicariously liable and, thus, the negligence claim must be dismissed.

Plaintiff's contention that she should be permitted to serve an amended complaint alleging a cause of action for Vernon Manor's negligent hiring, supervision and retention of McCullough, is without merit. Leave to amend the pleading should be freely granted where the proposed amendment is not palpably insufficient or patently devoid of merit and will not prejudice or surprise the opposing party (see CPLR 3025 [b]; Bolanowski v Trustees of Columbia Univ. in City of N.Y., 21 AD3d 340, 341 [2005]; Crespo v Pucciarelli, 21 AD3d 1048, 1049 [2005]). In this case, the proposed
amendment is palpably insufficient and devoid of merit (see Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 AD2d 159, 161 [1997]). Accordingly, the court below properly denied plaintiff's cross motion seeking, inter alia, to amend the complaint. Rudolph, P.J., Angiolillo and Tanenbaum, JJ., concur.
Decision Date: November 30, 2006