Opinion
2020–01543 Index No. 707614/19
01-25-2023
Giselle ROMAN, etc., appellant, v. NEW YORK CITY HOUSING AUTHORITY, respondent, et al., defendants.
Certain & Zilberg, PLLC, New York, NY (Michael Zilberg of counsel), for appellant. Herzfeld & Rubin, P.C., New York, NY (Sharyn Rootenberg and Miriam Skolnik of counsel), for respondent.
Certain & Zilberg, PLLC, New York, NY (Michael Zilberg of counsel), for appellant.
Herzfeld & Rubin, P.C., New York, NY (Sharyn Rootenberg and Miriam Skolnik of counsel), for respondent.
COLLEEN D. DUFFY, J.P., LINDA CHRISTOPHER, DEBORAH A. DOWLING, BARRY E. WARHIT, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for personal injuries, etc., the plaintiff appeals from an order of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), entered January 6, 2020. The order, insofar as appealed from, granted the motion of the defendant New York City Housing Authority pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The defendant New York City Housing Authority (hereinafter NYCHA) moved pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it on the ground that the plaintiff failed to serve a timely notice of claim. The Supreme Court granted NYCHA's motion, and the plaintiff appeals.
"Service of a notice of claim ... is a condition precedent to a lawsuit against a municipal corporation" ( Davidson v. Bronx Mun. Hosp., 64 N.Y.2d 59, 61, 484 N.Y.S.2d 533, 473 N.E.2d 761 ; see Public Housing Law § 157[2] ; Torres v. New York City Hous. Auth., 199 A.D.3d 852, 853–854, 157 N.Y.S.3d 522 ).
Shortly before commencing this action, the plaintiff commenced a proceeding, inter alia, pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim on NYCHA. In light of our determination on a related appeal in that proceeding (see Matter of Roman v. New York City Hous. Auth., ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2023 WL 380073 [decided herewith]) affirming so much of an order entered January 6, 2020, as denied that branch of the petition which was for leave to serve a late notice of claim on NYCHA, the plaintiff failed to serve a timely notice of claim on NYCHA.
Accordingly, the Supreme Court properly granted NYCHA's motion pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it (see Kuterman v. City of New York, 121 A.D.3d 646, 648, 993 N.Y.S.2d 361 ; Matter of White v. New York City Hous. Auth., 38 A.D.3d 675, 676, 831 N.Y.S.2d 515 ).
DUFFY, J.P., CHRISTOPHER, DOWLING and WARHIT, JJ., concur.