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May 26, 1977.

Michael GRABOI and Nicole Graboi, Plaintiffs,
Henry KIBEL and Anna Levinson, Defendants.

The opinion of the court was delivered by: GOETTEL

GOETTEL, District Judge.

This diversity action arises from an alleged rape on April 11, 1969, of plaintiff, Nicole Graboi, by a doorman employed by defendants Kibel and Levinson. *fn1" At the time of the incident, plaintiff was visiting her father, also a named plaintiff, *fn2" who was a tenant in the defendants' building. The complaint states two causes of action: the first, asserting defendants' vicarious liability for their employee's intentional tort of assault and battery; and the second, claiming breach of the "covenant of quiet enjoyment and peaceful occupancy" contained in the lease.

 Defendant Levinson has moved to dismiss the complaint on the ground that these causes of action are barred by the applicable statutes of limitations. Plaintiff responds that the limitations periods have been tolled due to plaintiff's insanity. In addition, she has cross moved under F.R.C.P. 15(a) to amend the complaint by adding a cause of action based on several theories of negligence, claiming that: (1) the terrace of the apartment was negligently constructed so as to facilitate easy access by an intruder; (2) the building had inadequate security; and (3) the defendants acted negligently in hiring the doorman since they knew or should have known of his propensity for violence. *fn3"

 Rule 15(a) requires that leave to amend be freely given "when justice so requires." Since the thrust of the federal rules is to promote decisions on the merits, courts will grant amendments, absent countervailing considerations such as prejudice to a party, undue delay of the trial, or the movant's bad faith. 3 Moore's Federal Practice [*] 15.08[2] (1974). Although courts view favorably requests for amendments, the probability that the proposed cause of action is barred by the statute of limitations and does not relate back under F.R.C.P. 15(c) is a factor which militates against amendment. Middle Atlantic Util. Co. v. S.M.W. Dev. Corp., 392 F.2d 380 (2d Cir. 1968); Pasos v. Pan American Airways, 17 F.R.Serv. 15a.34 (S.D.N.Y.1952).

 Rule 15(c) permits relation back of a claim asserted in an amended pleading if it "arose out of the conduct, transaction, or occurrence set forth... in the original pleading." In determining whether a claim should relate back, the inquiry should focus upon whether the statement of facts in the original pleading gave notice of the claim now sought to be added. Rosenberg v. Martin, 478 F.2d 520 (2d Cir.), cert. denied, 414 U.S. 872, 94 S. Ct. 102, 38 L. Ed. 2d 90 (1973).

 The original complaint premised defendants' liability upon two distinct theories: vicarious liability for the intentional torts of an employee and contractual responsibility flowing from an alleged breach of the lease. The cryptic factual allegations supporting these claims cannot be said to have apprised defendants that they should be prepared to respond to causes of action based upon negligent construction and maintenance or inadequate security. *fn4" Moreover, even if these claims could be regarded as relating back, other considerations weigh against permitting amendment. The first is the obvious prejudice to the defendant. The alleged rape which is the basis of the action occurred on April 11, 1969, and suit was not commenced until January, 1975. Even then, plaintiff delayed almost two years in seeking an amendment to add negligence claims. Defendant maintains that eight year old maintenance records and the original construction records are not available. While failing to indicate whether they existed on the date suit was brought, clearly plaintiff's two year delay in asserting new claims compound the potential difficulty at trial of proving the condition of the building and the security methods in use at the time of the incident. Moreover, plaintiff's delay calls into question her good faith. Defendant contends, without a contrary response, that Judge Lasker called plaintiff's attorney's attention to the absence of a negligence claim during a pre-trial conference held over a year ago. According to the defendant, plaintiff replied that amendment would be futile because he did not believe negligence claims could be sustained. Regardless of whether such an exchange occurred, the failure of the claim to relate back, coupled with plaintiff's delay in seeking an amendment, causes this Court, in its discretion, to deny amendment to include claims for negligent construction and maintenance and for inadequate security.

 The third claim sought to be asserted - negligent hiring of the employee doorman - stands on a different footing. The facts underlying the original claim for assault give fair notice to the defendants of a claim that had the defendant used due care in hiring their employee, the assault would not have occurred. Cf. Flaherty v. United Engineers & Constructors, Inc., 213 F. Supp. 835 (E.D.Pa.1961) (leave granted to add claim for assault to negligence claim even though original complaint was filed over two and a half years earlier). Therefore, finding that the nature of the claim for negligent hiring is such that it should relate back, the Court must next determine whether amendment nevertheless should be denied because the claim is barred by the applicable statute of limitations. Middle Atlantic Utility Co. v. S.M.W. Dev. Corp., supra. Crucial to this inquiry, of course, is the initial resolution of which statutes of limitations apply and whether they have been extended by a tolling period.

 Determining the appropriate statute of limitations can sometimes be difficult. Taking the easier ones first, the assault claim is clearly governed by the one year limitations period provided by N.Y.C.P.L.R. § 215(3) (McKinney 1972). Similarly, the negligence claims sought to be asserted are subject to a three year period since they are actions "to recover damages for personal injury" under N.Y.C.P.L.R. § 214(5) (McKinney 1972). The claim for breach of an express covenant in the lease raises more troublesome issues. *fn5" At first glance, it would appear to be governed by the six year period of N.Y.C.P.L.R.§ 213(2) (McKinney 1972) which controls actions "upon a contractual liability express or implied." The defendant argues, however, that the essence of plaintiff's claim sounds in negligence and, therefore, the three year statute of limitations applies.

 In applying a statute of limitations, New York courts have consistently held that "the reality, and the essence of the action and not its mere name" are controlling. Brick v. Cohn-Hall-Marx Co., 276 N.Y. 259, 264, 11 N.E.2d 902, 904 (1937) (contract rather than fraud statute of limitations held applicable). For this reason, where the gravamen of the cause of action is to recover damages for personal injury, the negligence and not the contract period applies. Hermes v. Westchester Racing Assoc., 213 App.Div. 147, 210 N.Y.S. 114 (1st Dep't 1925). In other words, where the duty to use due care stems from a contractual relationship, plaintiff may elect to proceed upon either a tort or contract theory in proving the case, but the negligence statute of limitations will control. Atlas Assurance Co. v. Barry Tire & Serv. Co., 3 A.D.2d 787, 160 N.Y.S.2d 547 (3d Dep't 1957).

 The New York courts have passed upon a situation closely analogous to that presented here. In Alyssa Originals, Inc. v. Finkelstein, 22 A.D.2d 701, 254 N.Y.S.2d 21 (2d Dep't 1964), aff'd, 24 N.Y.2d 976, 302 N.Y.S.2d 599, 250 N.E.2d 82 (1969), plaintiff sued his landlord for damages to his property alleging breach of an express covenant of quiet enjoyment incorporated in the lease. The court held that the action was barred by the three year negligence statute of limitations, saying:

 "[Plaintiff's] position, however, is that the six-year Statute of Limitations... relating to actions 'upon a contractual obligation or liability express or implied,' is applicable. With this contention we disagree.... Negligence of the landlord is the crux of the causes of action here; and, without proof of such negligence there can be no recovery, since without negligence in this case there is no independent breach of the provisions in the lease."

 Id. 22 A.D.2d at 701, 254 N.Y.S.2d at 23. The continuing viability of this case is implied by its citation in a recent decision of the Appellate Division, Steiner v. Wenning, 53 A.D.2d 437, 440, 386 N.Y.S.2d 429, 432 (2d Dep't 1976). The Court, following the same rationale used in Alyssa Originals, held that defective performance by architects in supervising the construction of a building was governed by the three year malpractice rather than the six year contract statute of limitations.

 Plaintiff's attorney admits that these cases have an impact upon Nicole Graboi's claim since it clearly stems from her personal injuries suffered during the rape. Plaintiff contends, however, that they do not affect her father's claim for medical expenses and mental anguish. Plaintiff does not support, by reference to case law, this apparently novel theory that a claim deriving from another's personal injuries gets the benefit of a longer statute of limitations than the primary claim could achieve. Lacking such support, the Court will not deviate from the general rule that derivative claims are barred when the claim upon which they rest expire. Moreover, this rule cannot be circumvented by mislabelling as contractual a derivative claim based on another person's injuries. Mamunes v. Williamsburgh General Hospital, 28 A.D.2d 998, 283 N.Y.S.2d 457 (2d Dep't 1967), aff'd, 23 N.Y.2d 757, 296 N.Y.S.2d 954, 244 N.E.2d 468 (1968).

 Because the essence of the cause of action stylized as "contractual" is clearly plaintiff's personal injuries, the three year statute of limitations applies to this cause of action as well as the negligence claims. For this reason, the presence of a toll becomes crucial, because without it, all the causes of action stated in the complaint or sought to be added through amendment are time barred. (This would ...

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