Calloway v New York City Hous. Auth.

[*1] Calloway v New York City Hous. Auth. 2009 NY Slip Op 51302(U) [24 Misc 3d 1208(A)] Decided on June 24, 2009 Supreme Court, Kings County Miller, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 24, 2009
Supreme Court, Kings County

Veronica Calloway, Plaintiff,

against

New York City Housing Authority and the City of New York, Defendant. (s)



23162/08



The plaintiff is represented by the Law Office of David J. Broderick, P.C., by Kenneth R. Berman, Esq., of counsel, the defendant New York City Housing Authority is represented by Herzfeld & Rubin, P.C. by Herbert Lazar, Esq., of counsel.

Robert J. Miller, J.

The defendant New York City Housing Authority (NYCHA) moves pursuant to CPLR §3211 to dismiss plaintiff Veronica Calloway's (Calloway) complaint. NYCHA asserts that plaintiff failed to comply with Public Housing Law (PHL) §157 and General Municipal Law

(GML) §50-e by failing to serve a timely Notice of Claim. Plaintiff Calloway opposes asserting that a timely Notice of Claim was filed and cross-moves pursuant to §50-e (6) for leave to amend that Notice of Claim.

On June 18, 2007, the plaintiff resided at a building owned by NYCHA at 260 Mother Gaston Boulevard, Brooklyn, NY when a fire broke out allegedly due to faulty electrical wiring. Plaintiff, pro se, filed a Notice of Claim dated August 15, 2007 on the New York City Housing Authority. The Notice of Claim Court is clearly stamped: "RECEIVED BY N.Y.C.H.A. LAW DEPARTMENT, 2007 Aug 15 P". However, the Notice of Claim was filed on a "blumberg form" and although served on NYCHA, the pre-printed form reads "Veronica Calloway against The City of New York". Plaintiff listed the nature of the claim as "electrical fire damage to property". In addition, plaintiff, pro se, filed an affidavit in the Housing Part of the New York City Civil Court in an action that plaintiff had previously brought against NYCHA relating to repair issues in her apartment. In the July 30, 2007 affidavit, she alleged "due to non-compliance of repairs to my electrical outlets, an (electrical) fire broke out in my apartment".

Plaintiff was subsequently represented by counsel and an amended Notice of Claim was filed without leave of court on NYCHA on January 14, 2008. The January 14, 2008 Notice of Claim increased the property damage claim from eight thousand five hundred dollars ($8,500) to eighty thousand dollars ($80,000), added the date of the [*2]incident and added a claim for psychological injuries in the amount of one million twenty thousand dollars ($1, 020, 000).

On February 28, 2008, a hearing was held pursuant to GML §50-h by NYCHA. Plaintiff testified as to the monetary damages to her possessions in the apartment and to mental depression that she sought treatment for after the fire had occurred. Plaintiff filed a summons and complaint on August 6, 2008. Issue was joined by NYCHA on September 4, 2008.

Plaintiff was required to file a timely Notice of Claim pursuant to PHL §157 and GML §50-e arising from the fire that occurred on June 18, 2007 by September 16, 2007. The August 15, 2007 Notice of Claim filed by the plaintiff was timely filed, however, the question before the Court is whether that notice was a valid Notice of Claim as against NYCHA since it lists the City of New York not NYCHA in the caption portion of the notice which was served on the NYCHA.

An amended Notice of Claim served without leave of court is a nullity when not served within the required 90 days. (Laroc v City of New York , 46 AD3d 760 [2d Dept 2007], Matter of White v New York City Housing Authority, 38 AD3d 675[2d Dept 2007] , Maxwell v City of New York , 29 AD3d 540 [ 2d Dept 2006 ]). Furthermore, when a party has not made a motion to serve a late Notice of Claim within the one (1) year and ninety (90) days required by General Municipal Law §50-e (5), it is well-settled that the Court is without jurisdiction to permit the party to comply with the Notice of Claim requirement after the expiration of the statute of limitations. (Hochberg v City of New York, 63 NY2d 665 [1984]).

Here, plaintiff moves pursuant to General Municipal Law §50-e (6) to correct the August 15, 2007 Notice of Claim to reflect the proper entity that was served ( NYCHA not the City of

New York), to correct the plaintiff's omission of the date of the fire, to increase the amount of damages asserted for property damage from $8500 to $80,000 and to add claims of psychological damage of One Million Twenty-Thousand Dollars ($1,020,000). Essentially plaintiff moves to correct the August 15, 2007 Notice by replacing it with the January 14, 2008 Notice of Claim.

NYCHA asserts that plaintiff's August 15, 2007 Notice of Claim does not contain a mistake or omission to be corrected, but because it was served listing the City of New York as a party without a date of incident, it is an invalid Notice of Claim which cannot be amended as the statue of limitations has now run. [*3]

GML § 50-e(6) reads;

Mistake, omission, irregularity or defect. At any

time after the service of a notice of claim and at

any stage of an action or special proceeding to

which the provisions of this section are applicable,

a mistake, omission, irregularity or defect made

in good faith in the notice of claim required to be

served by this section, not pertaining to the manner

or time of service thereof, may be corrected, supplied

or disregarded, as the case may be, in the discretion of

the court, provided it shall appear that the other party

was not prejudiced thereby.

Generally, a mistake made in good faith can be corrected if there is no showing that the defendant will be prejudiced. The kinds of amendments allowed are usually those that are non-substantive in nature, such as the date of the occurrence or the location of the accident. (Gatewood v. Poughkeepsie Housing Authority, 28 AD3d 515 [2nd Dept 2006], Seaita v. City

of Yonkers, 292 AD2d 456 [2nd Dept.2002], Tucker v. Long Island Railroad Company, 128 AD2d 517 [2nd Dept 1987], Cruz v. City of New York, 95 AD2d 790 [2nd Dept 1983],

Mayer v Dupont Associates, Inc. 80 AD2d 799 [1st Dept 1981], Sanchez v City of New York, 95 AD2d 790 [2d Dept 1966].) Substantive amendments to a Notice of Claim, such as the addition of a new theory of liability are not allowed pursuant to GML § 50-e(6). (Harrington v. City of New York, 6 AD3d 662 [2nd Dept.2004], Zwecker v. Clinch, 279 AD2d 572 [2nd Dept.2001]).The Court exercising its discretion under GML 50-e (6) determines that the August 15, 2007 Notice of Claim served on NYCHA was a valid Notice of Claim. NYCHA acknowledges that it's records reflect that plaintiff's Notice of Claim was received on August 15, 2007. In Lomax v The New York City Health and Hospitals Corporation, 262 AD2d 2 [1st Dept 1999], the Court allowed a correction of the name of an allegedly negligent hospital from that designated in the original Notice of Claim stating that, " As General Municipal Law §50-3 (6) clearly gives courts the power to allow corrections in such cases, there was no need to treat the correction as a new claim for which plaintiff needed permission to file a late Notice of Claim." It is admitted that the August 15, 2007 Notice of Claim was timely served on NYCHA. A cursory review of the Notice indicates that the nature of the claim is a property damage claim at an address which is a NYCHA building. Accordingly, there is no prejudice to allowing the correction of the name of the entity against whom the claim is brought as NYCHA was on [*4]notice that the claim involved one of their buildings.

In addition, the Court finds that the addition of the omitted date of incident is ministerial

in nature and that since NYCHA conducted a GML § 50-h hearing there is no prejudice to NYCHA. The purpose of a Notice of Claim, which is to allow the defendant to make an

investigation of the facts and preserve the relevant evidence, has been met. (Garcia v O'Keefe, 5 Misc 3d 1006(A) [2004]).

The Court next looks to the plaintiff's request to increase the amount from $8500 to $80,000 for property damages. The August 15, 2007 Notice of Claim contains a property damage claim which is supplemented by the January 14, 2008 Notice of Claim without substantially altering the theory of liability. (Streletskaya v New York City Tr. Auth, 27 AD3d 640 [2d Dept 2006].) As such, the amendment is permitted. However, the attempt to add a personal injury claim relating to psychological damages is a claim which sets forth a new theory of liability, was not set forth in the August 15, 2007 Notice of Claim and is therefore not an omission or mistake that can be corrected. Accordingly, this amendment is not permitted.

Accordingly, the defendant NYCHA's motion to dismiss pursuant to CPLR §3211 is denied. Plaintiff's cross-motion to amend plaintiff's Notice of Claim pursuant to GML §50-e (6)

is granted to the extent that the January 14, 2008 Notice of Claim is deemed the operative Notice of Claim except the portion of the Notice of Claim as to psychological damages which is stricken.

The foregoing constitutes the decision and Order of the Court.

_______________________

Robert J. Miller

J.S.C.

June 24, 2009