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Victor Y. Batshever v. Daniel Black

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


April 11, 2011

VICTOR Y. BATSHEVER,
APPELLANT,
v.
DANIEL BLACK, NEW YORK CITY FIRE DEPARTMENT AND NEW YORK CITY HOUSING AUTHORITY,
DEFENDANTS,
AND NATHANIEL BLACK,
RESPONDENT.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered November 18, 2009.

Batshever v Black

Appellate Term, Second Department

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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 11, 2011

PRESENT: WESTON, J.P., GOLIA and RIOS, JJ .

The judgment, after a non-jury trial, dismissed the action with prejudice.

ORDERED that the judgment is affirmed, without costs.

Plaintiff resided in public housing operated under the aegis of the New York City Housing Authority ("the Housing Authority"). In this small claims action, plaintiff asserts that the Housing Authority or its agents wrongfully damaged or destroyed the door of plaintiff's apartment, which door had two locks, and installed a replacement door that had only a single lock. Plaintiff brought this action to recover the costs he incurred in connection with the installation of a second lock on his door. Plaintiff sued Daniel Black, the New York City Fire Department, the Housing Authority, and Nathaniel Black, who was apparently employed by the Housing Authority as the superintendent of the apartment building in which plaintiff resided. Plaintiff subsequently abandoned his claims against all the defendants except Nathaniel Black.

Claims against the Housing Authority are subject to the notice requirements of General Municipal Law § 50-e (see e.g. Matter of Mounsey v City of New York, 68 AD3d 998 [2009]); furthermore, because employees of the Housing Authority acting within the scope of their employment are generally entitled to be defended and indemnified by the Housing Authority (see Public Housing Law § 402-a), even where, as here, the plaintiff discontinued his claims against the public corporation and only maintained a claim against an individual employee of the Housing Authority who was acting within the scope of his employment, a notice of claim was required to be served in accordance with General Municipal Law § 50-e (1) (a).

Where service of a notice of claim is required, notice within 90 days after accrual of the cause of action is a condition precedent to commencing an action against a public agency of the City of New York or its employees (see e.g. Matter of Chauhan v New York City Tr. Auth., 78 AD3d 1176 [2010]). Even when it was raised as an issue, plaintiff failed to demonstrate to the Civil Court his compliance with General Municipal Law § 50-e. Consequently, the dismissal of this action effected substantial justice between the parties according to the rules and principles of substantive law (CCA 1807).

We do not consider those materials or claims plaintiff has submitted or made to this court which, not having been introduced or raised as issues at trial, are dehors the record (see Chimarios v Duhl, 152 AD2d 508 [1989]; Mitchell v Sebrew, 17 Misc 3d 137[A], 2007 NY Slip Op 52301[U] [App Term, 2d & 11th Jud Dists 2007]). Plaintiff's allusion on appeal to an alleged settlement offer is not contained within the record and, in any event, would not have been admissible as a concession of liability (see Collins v Hayden on Hudson Condominium, 223 AD2d 434 [1996]).

Accordingly, the judgment is affirmed.

Weston, J.P., Golia and Rios, JJ., concur.

Decision Date: April 11,2011

20110411

© 1992-2011 VersusLaw Inc.



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