Opinion
2014-03-27
Donette KINGSTON, Plaintiff–Appellant, v. NEW YORK CITY DEPARTMENT OF HOMELESSNESS SERVICES, Defendant–Respondent.
Donette Kingston, appellant pro se. Michael A. Cardozo, Corporation Counsel, New York (Ellen Ravitch of counsel), for respondent.
Donette Kingston, appellant pro se. Michael A. Cardozo, Corporation Counsel, New York (Ellen Ravitch of counsel), for respondent.
Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered November 16, 2012, which granted defendant's motion to dismiss the complaint, unanimously affirmed, without costs.
Plaintiff, who commenced an action against defendant alleging, among other things, that defendant failed to maintain the shelter where she resided in a safe and sanitary condition, failed to exhaust her administrative remedies prior to commencing this action, inasmuch as she was entitled to request a fair hearing to challenge the adequacy of the shelter's services, but failed to do so ( see18 NYCRR 358–3.1[b][6]; 18 NYCRR 358–3.2[b][3]; see also Jenkins v. State of N.Y. Div. of Hous. & Community Renewal, 264 A.D.2d 681, 682, 695 N.Y.S.2d 563 [1st Dept.1999] ).
Plaintiff's action is also barred by the doctrine of collateral estoppel. Plaintiff previously commenced an action in Housing Court seeking correction of alleged violations of the Administrative Code by defendant, and the issues raised in that action, which plaintiff had a full and fair opportunity to litigate, and which were decided against her, are the same issues she raises in this action ( see Ventur Group, LLC v. Finnerty, 80 A.D.3d 474, 475, 915 N.Y.S.2d 64 [1st Dept.2011];CPLR 3211[a][5] ).
Plaintiff's retaliation claim, based on the allegation that the director of the shelter where plaintiff resided encouraged other residents to fight with her, was also properly dismissed. Even assuming the allegation to be true, such action on the part of the director cannot be said to be committed in furtherance of defendant's business, and within the scope of the director's employment ( see N.X. v. Cabrini Med. Ctr., 97 N.Y.2d 247, 251, 739 N.Y.S.2d 348, 765 N.E.2d 844 [2002] ).
Furthermore, plaintiff lacked standing to bring a cause of action on behalf of the New York City Human Resources Administration, since she does not have the authority to act on the agency's behalf ( see e.g. Hill v. Coates, 78 A.D.3d 439, 440, 911 N.Y.S.2d 294 [1st Dept.2010],lv. denied 16 N.Y.3d 712, 2011 WL 1675374 [2011] ). MOSKOWITZ, J.P., RICHTER, MANZANET–DANIELS, CLARK, KAPNICK, JJ., concur.