Martinez v New York City Hous. Auth.
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Martinez v New York City Hous. Auth. 2013 NY Slip Op 33610(U) December 18, 2013 Supreme Court, Bronx County Docket Number: 301425/2012 Judge: Mary Ann Brigantti-Hughes Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] PARTIS cue·o~ 0 0 Sett1eM·1.·; Index N!. 30142Slll12 ' ' ,, .·,.·.; ·- ., :<''· . ..,_,;....~""""-··-- 'di.:f~---,~ ¢~~~:~;;--rt-.;{ ~~-·-------- . Hi: . , !~;.' ·. l!ito ---------X- ...- - -.. ·· l to S_.·Read on this motion, .J>ISMlSSaL ·mu· sµbmitted on the Motioa.Calendar pf 2 1 3 4 s n~ damages for injuries arising out ofan alleged slip/trip and fall accident, th~ ln.lln defend~ ¢fNewJ'ptt City Housing Authority ("NYCHA'') moves to dismiss cel'tain theories ofliability ,- ' ' [> t \ \ setfurthinthe ~and bill of particulars of theplaintitrSara Martinez ("Plaintiff'), as th~are in Wioleicm ~£~Municipal Law 50-e and Public Housing Law Sec. 157(2). :"~1'oi~j~;!bovaat seeks dismissal of the claims that NYCHA: (1) fai~~~y and adequately train maintenance staff; (lJfai~~jhitve a proper and competent maimenarice staff; {J)fail··~ ¢a proper and competent contractor; ¢·reta~tnalintei. .::e personnel who posecl a direct threat to safety, health and well·being of ad tefusing to maintain the prcmbes jn a safe condition and proper state of · 1 [* 2] FIL~D Jan 0 2 19JfalfJ8~6~£lc1tP!YJ6~fig~, signs, barriers, flares, stop signs, guards, lights, signals, barricades, or to employ other warning/protective devices to give notice of the alleged dangerous and defective condition. NYCHA also seeks dismiss of the claims that they violated certain sections of the NYC Admin. Code., including §27-2053; 27-2026; 28-301.1; 27-2005; Multiple Dwelling Law §§83; 309; 78, and 80; Real Property Law §235-b. On April 17, 2011, Plaintiff allegedly slipped and fell on a flight of stairs between the 2nd and 3rd floors within the premises located at 2745 Sampson Avenue, Bronx, New York. In her Notice of Claim, Plaintiff alleged that she slipped and fell on liquid on the staircase, and asserted general negligence claims for failure to maintain the property in a safe condition. The Notice of Claim states specifically that it is to recover damages for personal injuries against NYCHA, "its agents, servants and/or employees in the ownership, operation, control, repair, and maintenance of its premises." NYCHA argues that the Notice of Claim contained no specific allegations about the maintenance staff and/or contractor incompetence or improper training. It also contained no allegations that NY CHA failed to place warnings and/or protective devices in the area. At her 50-h hearing, Plaintiff did not allege that her accident was due to a poorly trained maintenance staff or faulty plumbing/drainage system. In her February 1, 2012 summons and complaint, Plaintiff alleged for the first time that NYCHA employees caused/created the allegedly defective condition and failed to post warnings. Plaintiff did not timely assert these allegations in her Notice of Claim or seek leave to file an Amended Notice of Claim. In opposition, Plaintiff argues that her Notice of Claim sought recovery for damages "due to the negligence, recklessness and carelessness ofNYCHA, its agents, servants, and/or employees in the ownership, operation, control, repair and maintenance of the premises." Plaintiff testified at the 50-h hearing that water would always enter the premises when it was raining outside. Plaintiff argues that this gave the defendant sufficient notice of her theories of negligence now asserted in her bill of particulars. Moreover, NYCHA cannot demonstrate that it has been prejudiced in its ability to investigate the accident. Finally, the alleged statutory and code violations asserted were in direct response to an interrogatory presented in NYCHA' s discovery demands. Upon review of the submissions and relevant case law, this Court will strike Plaintiff's claims enumerated above as (1 ), (2), (3), and (4), as the allegations ofinadequate hiring or training of personnel go beyond mere amplification of the Notice of Claim, and instead, set forth new, distinct and independent theories of liability (Melendez v. New York City Housing Authority, 294 A.D.2d 243 [151 Dept. 2002][claims of negligent hiring or training struck where notice of claim alleged slip and fall on liquid/debris on stairs and lack of handrail]; Lopez v. New York City Housing Authority, 16 A.D.3d 164 [1st Dept. 2005)). Accordingly, the related Code Violations of NYC Admin. Code §27-2053(failure to provide adequate janitorial services), and Multiple Dwelling Law §83(failure to provide a janitor who resides in the subject 2 [* 3] FIL~DptJ:fills~~&PJ,ftrft3~~'fe~~gfYsMlf3p~emises) must also be struck. The remaining claim (enumerated [5], above), and remaining alleged code violations asserted in the verified bill of particulars were "fairly implied" by the Notice of Claim and statutory hearing and were therefore properly asserted (Melendez, supra.; Alvarado v. New York City Housing Authority, 302 A.D.2d 264 [1st Dept. 2003]). This constitutes the Decision and Order of this Court. Dated: /}/ (!___, 2013 Hon. Mary Ann Brigantti·Hughes, J.S.C. 3
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