Keene v New York City Hous. Auth.

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Keene v New York City Hous. Auth. 2012 NY Slip Op 32326(U) September 5, 2012 Supreme Court, New York County Docket Number: 105592/2011 Judge: Singh Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 911012012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY I I\ I I HON,Ahm.c.S N G H PRESENT: PART S~COtTRTJUSTKE Justice i' L f p - - Index Number : 105592/2011 KEENE,IARRY INDEX NO. I 1 vs. NYC HOUSING AUTHORITY SEQUENCE NUMBER : 002 1 DISMISS DEFENSE The following paptars, numbered Ito Notice of YotionlOrder to Show Cause MOTION DATE MOnONS~Q.NO. I , , were read on this motion tolfor -AftIdavita - Exhiblta IWd. I IW a ) , 2 1 No(8). 3 Answoring Affidavits - Exhibits Replying Affldavh Upon the foregolng papers, It la ordered that this motion I s de c r*& ;/ 4 C co 'BAA cc f A Dated: d= &= I. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: 3. CFECK IF APPROPRIATE: , J.S.C. CASE DISPOSED ........................... MOTION IS: 17GRANTED ................................................ 0SETLE ORDER 0DO NOT POST &-FINAL DENIED GRANTED IN PART Dl$PO$lTiON 0OTHER 0SUBMIT ORDER 0FlDUClAflY APPOINTMFNT [JREFERENCE [* 2] DECISION AND ORDER -against- Tndex No. 105592/11 NEW YORK CITY HOlJSING AUTHORITY and THE CITY OF NEW YORK, 1 I !LIED ' HON. ANII., C. SINGH, J.: Plaintiff in this wrongful death action moves to strike defendants' tenth affirmative defense based on the statute of limitations and eleventh affirmative defense based on failure to comply with prerequisite conditions of the Public Housing Law and Gcneral Municipal Law. Defendant New York City Housing Authority ("NYCHA") opposes the motion to the extent that it seeks dismissal of NYCHA's affirmative defense based on the expiration of the statute of limitations. On February 15,2009, a fire broke out in an apartment building owned and operated by NYCHA at 2400 Second Avenue in Manhattan. Jennifer Baez, a resident of apartment IOA, suffered smoke inhalation. She died three days later The decedent was an uniiiarried mother of three minor children. Calvone Smith was born February 1 1, 1998, and Serenity Baez was born February 27, 2002. Calvin Page 1 of 4 [* 3] Smith is the biological father of Calvone and Serenity. Decedent s third child, Eternity Keene, was born January 22, 2007, Larry Keene is the biological father of Eternity. Neither Mr. Keene nor Mr. Smith were ever married to decedent. On May 7,2009, a Notice of Claim was served on NYCHA by decedent s mother, Merle Baez, as proposed Administratrix of decedent s estate. On October 8, 2004, Larry Keene was appointed as the guardian of the properly of the decedent s daughter, Eternity Keene. On January 24, 20 I 1 , Letters of Limited Administration were issued by Surrogatc s Court to Larry Keene for the Estate of Jennifer Baez. Surrogate s Court refused to grant Letters of Adininistration to Merle Baez because she was not the guardian of any of decedent s children. Accordingly, Mr. Keene was appointed Administrator. On February 7,201 1, Mr. Keene served a Notice of Claim upon NYCHA and the City of New York. Plaintiff Larry Keene, as administrator of the estate of Jennifer Baez, commenced the instant action on May 12, 201 1, by filing a summons and complaint. The complaint alleges that defendants were negligent in maintaining smoke and/or carbon monoxide detectors, causing the injury to decedent that ultimately led to her death. Plaintiff seeks damages on behalf of all three distributee children of Jennifer Baez. Page 2 of 4 [* 4] Defendant NYCHA filed a verified answer asserting twelve affirmative defenses. Subsequently, plaintiff filed the instant motion to strike two of the affirmative defenses, including the statute of limitations defense. Discussion A plaintiff, having moved to dismiss a defendant s affirmative defenses pursuant to the statute governing motions to dismiss a defense, bears the burden of establishing that the affirmative defenses are without merit as a matter of law (97 N.Y.Jur.2d Summary Judgment, Etc. Section 153). In deciding a motion to dismiss a defense, the defendant is entitled to the benefit of every reasonable intendment of the pleading, which is to be liberally construed (534 East 1 1 t Street Housing Development Fund Corp. v. Hendrick, 90 A.D.3d 541, 542 [ 1 Dept., 201 11 (internal citation omitted)). A defense should not be stricken where there are questions of fact requiring a trial (u). Defendant contends that factual questions remain as to when a potential personal representative could have commenced this case. NYCHA points out that all three of decedent s children reside with Calvin Smith (Opp., exhibit A). NYCHA notes that, while plaintiffs counsel focuses on the timing of Mr. Keene s appointment as guardian of his daughter, plaintiff makes no showing that Calvin Smith could not have served as a potential personal representative. According to defendant, Page 3 of 4 [* 5] plaintiffs motion to dismiss does not even consider the earliest possible moment that Mr. Smith was, or could have been, a potential personal representative. Defendant exhibits a letter dated June 25, 2009, in which plaintiffs counsel confirmed that they were retained by Mr. Keene, as well as by Mr. Smith (Opp., exhibit B). After careful consideration, the Court finds that NYCHA has sufficiently demonstrated that an issue of fact exists as to when a potential personal representative could have begun this action. Accordingly, it would be premature for the Court to dismiss the statute of limitations defense at this early stage of the litigation before defendants have had an opportunity to conduct discovery, including depositions of Mr. Keene and Mr. Smith. For the above reasons, it is ORDERED that the motion to dismiss is granted only to the extent that the affirmative defense asserting failure to comply with the Public Housing Law and General Municipal Law (eleventh affirmative defende) is dismissed; and it is further F+ ORDERED that couns a Room 320, 80 Centre Street, on 1 b S R p p e a i for a preliminary conference in @muyyyA, at 9:30 a.m. 2012, rl r New York, New York Ani1 C. $ngh Page 4 of 4

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