ADDITIONAL CASES New York City Housing Authority, Third-Party Plaintiff v. Marcell Dockery, Third-Party Defendant Recitation, as required by CPLR §2219 [a], of the papers considered in the review: NYSCEF Doc Nos: 712-713, 714-721, 787-788, 789-810, 824, 825, 865. New York City Housing Authority (NYCHA) moves for an order dismissing all causes of action personal to decedent Dennis Guerra and his estate for failure to file a notice of claim as to claims of injury, pain and suffering and death in accordance with GML 50-e and also seeks dismissal of claims for loss of consortium asserted by Plaintiff Cathy Guerra and claims pursuant to GML §205-e for failure to comply with GML §50-e. NYCHA further seeks to strike allegations in Plaintiff’s Bills of Particulars as beyond the scope of the notices of claim filed on April 17, 2014 and on September 2, 2014. On April 6, 2014, Decedent Dennis Guerra, an on-duty police officer, entered a NYCHA building having observed smoke coming from the 13th floor of the building. Officer Guerra and his partner were overcome by smoke and collapsed when they arrived on the 13th floor. They were rescued by firefighters and transported to the hospital, however Officer Guerra succumbed to his injuries on April 9, 2014. It is noted that in its initial moving papers, NYCHA asserted that the only notice of claim in this matter was one filed on September 2, 2014. In its Reply, NYCHA conceded that a notice of claim was duly and timely filed on April 17, 2014. They stated that it was missing from their file and the reason why it was not mentioned in their moving papers. As the issue of the substance of the notices of claim was fully discussed in the moving and opposition papers and no prejudice is evident from the omission, the Court will entertain the substance of the April 17, 2014 notice of claim as well as the September 2, 2014 notice of claim. NYCHA argues that the April 17th notice of claim (NYSCEF No. 789) makes claims only on behalf of decedent’s son’s losses due to his father’s death but that this notice does not make claims for decedent’s injury, pain, suffering and death. The notice of claim states: To recover damages for the loss of guidance, fatherly advice, and financial support for the child of deceased New York City Police Officer Dennis Guerra, sustained by the infant claimant, JONATHAN ERIC GUERRA, as a result of the negligence, carelessness and recklessness of the Respondents, THE NEW YORK CITY HOUSING AUTHORITY and THE CITY OF NEW YORK, by their agents, servants and/or employees concerning their maintenance, ownership, management, control, operation and repair of 2007 Surf Avenue, Brooklyn, New York, and its appurtenances and appliances. The infant claimant is the son of New York City Police Officer Dennis Guerra. Officer Guerra died from injuries sustained in Respondents’ building on the 13th floor at 2007 Surf Avenue, Brooklyn, New York, due to the negligence, carelessness and recklessness of Respondents, as alleged herein. Annexed is a copy of a news article pertaining to the events so as to further identify DENNIS GUERRA and the date, time and location of the instant incident. Police Officer DENNIS GUERRA was seriously injured as a result of Respondents’ negligence, carelessness and recklessness in the maintenance of its 2007 Surf Avenue apartment building; in failing to maintain its hallways in reasonable condition free of trash, debris, abandoned mattress and other flammable materials; in failing to remove an abandoned mattress left in the hallway of the 13th floor of said building; in failing to monitor its hallways and commonways, including the 13th floor of 2007 Surf Avenue, Brooklyn, New York and timely remove trash and discarded mattresses from its hallways so as not to contribute to the risk of a high-rise apartment fire with foreseeable injuries to tenants and first-responders; in allowing and permitting a known-prior arsonist and felon, Marcell Dockery, to live at 2007 Surf Avenue prior to the time of this incident; in failing to evict and exclude Marcell Dockery from 2007 Surf Avenue prior to Sunday, April 6, 2014, and/or terminate the lease of Sandra Howard, Dockery’s mother with whom he lived, if Howard did not prevent and keep Marcell Dockery from living in her apartment at 2007 Surf Avenue; in failing to monitor and control Marcell Dockery in light of his prior acts of arson before April 6, 2014 and prior felonious conduct, all well known to Respondents and their employees and agents; in failing to take any efforts to exclude Marcell Dockery from entering upon, or living at 2007 Surf Avenue prior to April 6, 2014 because of his prior arsonist acts and felony history that rained havoc and mischief on his neighbors at 2007 Surf Avenue. (Emphasis added.) The notice of claim states the following excerpt as to the manner in which the claim arose: The incident injuring Police Officer Dennis Guerra, which injuries, eventually eventually [sic] took his life, occurred when he heroically responded to a fire scene on the l3th floor of 2007 Surf Avenue in order to save the lives of the tenants at said high-rise fire. Police Officer Guerra and his partner, Police Officer Rodriguez, were overcome with smoke, carbon monoxide, and the noxious products of combustion given off from a fire that was set by Marcell Dockery, a known prior arsonist and felon, who lived in his mother’s apartment at 2007 Surf Avenue, Brooklyn, New York. When Officer Guerra and Officer Rodriguez arrived on the 13th floor of 2007 Surf Avenue, they were overcome by the smoke in said hallway. Said Marcell Dockery set a mattress afire that was present in the hallway of the l3th floor at 2007 Surf Avenue, causing the smoke, carbon monoxide and the poisonous products of combustion that took the life of Police Officer Guerra… Respondents, through their agents, servants and/or employees, without regard to their obligations to maintain their premises in a reasonable manner, allowed the mattress that was set ablaze…to exist in the hallway on the 13th floor of 2007 Surf Avenue for a prolonged period of time prior to the incident aforementioned. Respondents were negligent in failing to remove said trashed mattress from the hallway of the 13th Floor. Respondents failed to maintain their premises in a reasonable condition, failed to monitor and inspect their premises so as to protect their lawful tenants; and Respondents violated their own rules and regulations, as well as applicable housing statutes, including Multiple Dwelling Law Section 78 and the Administrative Code of the City of New York. As noted previously, the incident occurred as a result of Respondents’ negligence, carelessness and recklessness concerning their management, control and maintenance of its building at 2007 Surf Avenue, Brooklyn, New York, and in particular with regard to the 13th floor thereof. As items of injury and damage, the notice of claim states: Upon information and belief, Police Officer Dennis Guerra sustained severe permanent injuries and burns and inhaled carbon monoxide, soot and other poisonous products from the burning mattress aforementioned, said event tragically causing his death on or about April 9, 2014. As a result of said death, JONATHAN ERIC GUERRA, Dennis Guerra’s loving and devoted son, suffered not only the loss of his father, his father’s presence in his life and his father’s guidance, but also the loss of his father’s advice and direction, his love, attention, and care, as well as the financial support provided by this father. The full extent of the financial losses suffered by the infant-claimant, JONATHAN ERIC GUERRA, have not been ascertained at this time. (Emphasis added). An administrator was appointed on July 23, 2014. A second notice of claim was served on NYCHA on September 2, 2014. (NYSCEF #714). This notice of claim contains the following language: This is a claim to recover damages brought by the family of decedent Police Officer Dennis Guerra, who sustained severe personal injuries, pain and suffering that resulted in his death, as a result of the negligence, carelessness and recklessness of the Respondent, THE NEW YORK CITY HOUSING AUTHORITY, their agents, servants, employees and/or independent contractors, in their ownership, operation, control, management, maintenance and repair of the building located at 2007 Surf Avenue, Brooklyn, New York. Claims relate to failure to: (1) have proper safety equipment in place; (2) properly maintain premises at 2007 Surf Avenue, Brooklyn, NY including the lights, emergency systems, fire alarms, smoke detectors, emergency exits, elevators and other deficiencies that upon information and belief will be noted on police, fire department and NYCHA internal reports, reviews and investigations of the incident in which PO Dennis Guerra was overcome by smoke and subsequently died from his injuries when he was trapped in the premises on the floor where a fire occurred in a mattress; (3) otherwise violating the NYCHA and federal and state standards, laws, rules, regulations, policies and procedures affecting the construction, maintenance and repair of the premises including Administrative Code of the City of New York§§27-127 and 27-128 and other industrial, building and safety standards that apply to residential high rise apartment buildings of the type owned and controlled by the respondent; ( 4) otherwise being negligent, reckless and careless in the management, ownership and operation of the premises. This is also a claim to recover damages brought by the family of decedent Police Officer Dennis Guerra, who sustained severe personal injuries, pain and suffering that resulted in his death, as a result of the negligence, carelessness and recklessness of the Respondent, THE CITY OF NEW YORK, their agents, servants, employees and/or independent contractors in the operation, management, supervision, training and control of the New York Police department and violation of New York State Labor Law §27 -a. Safety and health standards for public employees; and General Municipal Law §205-e; Administrative Code of the City of New York§§27-127 and 27-128; violation of the Occupational Safety and Health Administration Act and various rules, regulations and safety standards adopted thereunder; violation of 12 NYCRR 800.3; Labor Law §200 and other provisions of law and regulations that are as yet unknown to the deceased claimant’s family and representatives; That both respondents failed to provide a safe place to work, allowed the improper operation, maintenance and control of the premises. All respondents failed to: (1) furnish to each of its employees, employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees and which will provide reasonable and adequate protection to the lives, safety or health of its employees; and (2) comply with the safety and health standards promulgated under NY State Labor Law Section 27-a and the other applicable provisions of OSHA and pertinent OSHA regulations. That each respondent violated their own internal policies procedures, empowering statutes and regulations. That the NYPD as a Department of the City of New York failed to comply with its own internal directors, manuals, failed to adopt relevant policies and to provide proper instruction and training to police officers including safety protocol in event of high rise fires and that the City of New York violated other similar provisions and protocols that it had in place with the NYC Fire Department that provide for safety and protection of officers and employees; that the City of New York failed to provide the decent [sic] with supplemental oxygen or protective equipment and clothing to protect him in event of being trapped in a building on fire; and otherwise failed to adopt proper policies about NYCPD entry into buildings in the event of fires. Claimants have not received relevant investigative reports as of this date and claimant incorporates by reference all findings of the reports and investigations of the NYCPD, NYCFD, NYCHA and other investigative agencies and any employer of the claimant’s decedent. Claimants advise the respondents/defendants of these reports, investigations and other documents so that they are on notice of the same. Claimants further request that the respondents preserve the evidence in this case including all dispatch records, tapes, radio transmissions and other communications so that evidence is not destroyed in this case. It is requested that all respondents/defendants place litigation holds on all documents, digital and analog evidence including computerized evidence so as to preserve the same for discovery and to not destroy the same. Claimant Cathy Guerra further claims damages for loss of consortium of her husband. Claimants further seek all damages available under New York Law for pain and suffering and wrongful death of Dennis Guerra. (Emphasis added). The items of damage or injuries claimed are the following: Upon information and belief, Police Officer Dennis Guerra sustained severe permanent injuries and was caused to consume, ingest, inhale and were exposed to carbon monoxide and other dangerous toxic and poisonous gases from the combustion at the premises and subsequently died on April 9, 2014. Claimants claim damages for pain and suffering and wrongful death of P. O. Dennis Guerra as well as punitive damages to the extent permitted by law. Claimant Cathy Guerra seeks damages for loss of consortium of her husband Dennis Guerra and the loss of his love, affection and support during their lifetimes. (Emphasis added). In its motion, NYCHA argues that the notice of claim filed on September 2, 2014 was untimely as to decedent’s pain and suffering claims and is therefore a nullity. See GML §50-e. Plaintiff concedes that they have not made a motion to deem the September 2nd notice of claim timely filed. Movant also argues that the notice of claim filed on April 17, 2014 serves to only give notice of Jonathan Guerra’s wrongful death claims for pecuniary loss allegedly sustained by Jonathan as a result of the death of his father. NYCHA contends that the April 17th notice of Claim, which they concede was filed timely as to the wrongful death claim, is silent as to any claims attendant to Officer Guerra’s estate for decedent’s injuries and ensuing pain, suffering and death. They also argue that the April 17th notice of claim makes no claim for Cathy Guerra’s loss of consortium cause of action. NYCHA further argues that no notice was ever given that a GML §205-e cause of action would be asserted. Pursuant to §GML 50-e, “(a) timely and sufficient notice of claim is a condition precedent to asserting a tort claim against a municipality or public benefit corporation (internal citations omitted). With respect to most torts, service of the notice of claim must be made within 90 days after the claim arises, but “in wrongful death actions, the [90] days shall run from the appointment of a representative of the decedent’s estate” (General Municipal Law §50 — e[1][a]).” Se Dae Yang v. New York City Health and Hosps. Corp., 140 AD3d 1051, 1052 [2d Dept 2016]. It is also well established that “a wrongful death action belongs to the decedent’s distributees and is designed to compensate the distributees themselves for their pecuniary losses as a result of the wrongful act (see EPTL 5-4.3) In comparison, a personal injury action on behalf of the deceased under EPTL 11-3.2(b) seeks recovery for the conscious pain and suffering of the deceased and any damages awarded accrue to the estate (internal citation omitted). Such a claim is personal to the deceased and belongs to the estate, not the distributees In short, the two causes of action are ‘predicated on essentially different theories of loss which accrue to different parties”‘ (internal citation omitted). Heslin v. County of Greene, 14 NY3d 67, 76-77 [2010]. Accordingly, the substance of the claim and the time to file a notice of claim differs as to the two distinct causes of action. It is well established that the Court of Appeals holds that “to enable authorities to investigate, collect evidence and evaluate the merit of a claim, persons seeking to recover in tort against a municipality are required, as a precondition to suit, to serve a notice of claim” (Brown v. City of New York, 95 NY2d 389, 392 (2000). In particular, “(t)he General Municipal Law requires that the notice of claim set forth, among other things, “the nature of the claim” (internal citations omitted). Conn v. Tutor Perini Corp., 174 AD3d 680, 682 [2d Dept 2019]. “In order to have actual knowledge of the essential facts constituting the claim, the public corporation must have knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the notice of claim; the public corporation need not have specific notice of the theory or theories themselves.” (Internal citations omitted). Matter of D’Agostino v. City of New York, 146 AD3d 880, 881 [2d Dept 2017]. In Conn v. Tutor, the notice of claim stated that the decedent was seeking to recover damages for his “personal injuries, loss of earnings, pain and suffering and medical expenses.” After the expiration of the statute of limitations, decedent’s mother sought to add her own derivative claims — wrongful death claims. The Second Department found that as the original notice of claim was limited to allegations personal to the decedent, the amendment was time barred. The Court noted that the mother “was not identified as a claimant in the caption of the notices of claim, she was not mentioned in the text of the notices of claim, and there were no allegations that she, individually, sustained any damages for which compensation was sought from the City ” Conn v. Tutor Perini Corp., at 682. (Emphasis Added). The query to be resolved in this case is analogous to the issue in Conn v. Tutor Perini Corp. A reading of the notice of claim filed on April 17, 2014 clearly evidences that the claim was made specifically to recover damages for the loss of guidance, fatherly advice, and financial support on behalf of the child of deceased Officer Dennis Guerra, as a result of the alleged negligence, carelessness and recklessness of the defendants. These claims support a wrongful death cause action which serves to compensate distributees for their pecuniary losses as a result of the wrongful act. See, Heslin v. County of Greene, 14 NY3d 67, 76 (2010); see also EPTL 5-4.3; Cragg v. Allstate Indem. Corp., 17 NY3d 118, 121 [2011]. Here, although Jonathan Guerra’s claim for the losses he allegedly sustained due to the death of his father was adequately stated and timely interposed, the April 17th document does not mention that a claim was being made for Officer Guerra’s own injuries, pain and suffering and/or death. While the notice of claim filed on September 2nd gives notice of a claim for the decedent’s injuries including pain, suffering and his death, that notice was filed outside of the 90 days of the occurrence. Leave of court was not sought to deem it timely, nunc pro tunc. The statute of limitations, within which the court had discretion to consider a late notice of claim motion, has long run. The September 2nd is therefore a nullity as to Officer Guerra’s pain, suffering and death. “Late service of an original notice of claim is a nullity if made without leave of court, and the courts do not have the authority to deem that late notice of claim timely served nunc pro tunc after the statute of limitations has expired (see Browne v. New York City Tr. Auth., 90 AD3d 965 [2011]; Ellman v. Village of Rhinebeck, 27 AD3d 414, 415 [2006]; Alston v. Aversano, 24 AD3d 399 [2005]; Pierre v. City of New York, 22 AD3d 733 [2005]). J. H. v. New York City Health and Hosps. Corp., 169 AD3d 880 [2d Dept 2019]. As neither the April 17th nor the September 2nd notice of claim comply with GML 50-e, claims by the estate for injuries, pain, suffering and death of Officer Guerra must be dismissed for failure to comply with the notice of claim requirements set forth in General Municipal Law §50-e. Further, the April 17th notice of claim does not mention or state a claim for loss of consortium on behalf of Plaintiff Cathy Guerra. A claim alleging loss of consortium is not encompassed within a wrongful death action (see Liff v. Schildkrout, 49 NY2d 622, 632-633 [1980]). Monson v. Israeli, 35 AD3d 680 [2d Dept 2006]. Again, a plain reading of the April 17th notice of claim reveals that it is devoid of a statement resembling a loss of consortium claim. While the September notice of claim gives notice of a loss of consortium cause of action, it is a nullity, as it was not timely filed. Thus, the loss of consortium cause of action must be dismissed for failure to comply with GML 50-e, a condition precedent to suit. Additionally, the GML §205-e claim asserted in the complaint is not exempt from notice of claim requirement. Przybyszewski v. City of New York, 225 AD2d 556 (2d dept. 1996). Here the April notice of claim does not include a GML §205-e claim. In accordance with the above, this cause of action must also be dismissed. Since the September 2nd notice of claim was filed within 90 days of the appointment of the administrator, it is timely as to the distributees’ claim for wrongful death. In sum, the only viable claim which was properly and timely noticed in the notices of claim is for wrongful death, i.e., pecuniary loss of the distributees. It must also be noted that plaintiff may not cure the substantive omissions pursuant to GML 50-e(6). “A notice of claim may be amended only to correct good faith and nonprejudicial technical mistakes, omissions, or defects, not to substantively change the nature of the claim or the theory of liability (internal citations omitted). Castillo v. Kings County Hosp. Ctr., 149 AD3d 896 [2d Dept 2017]. Likewise, plaintiff’s claim that NYCHA must be equitably estopped is misplaced. Equitable estoppel against a public corporation will lie only when the public corporation’s conduct was calculated to, or negligently did, mislead or discourage a party from serving a timely notice of claim and when that conduct was justifiably relied upon by that party. Matter of Attallah v. Nassau Univ. Med. Ctr., 131 AD3d 609 [2d Dept 2015]. Here, there is no evidence that NYCHA misled plaintiff in any way with regards to the filing and substance of the notice of claim requirements. NYCHA also seeks to dismiss the following claims from Cathy Guerra’s Bills of Particulars: improperly cleaning and repainting over the walls of the hallways; failing to remove ignitable and/or flammable paints and material from the walls of the hallways; the persistence of flammable/ignitable materials on the surface of walls and within the floor tiles; paint build ups in the stairwells of the building either at the time of the fire or dating back to the 1980s. NYCHA also seeks to strike certain claims made in Cathy Guerra’s second supplemental bill of particulars dated October 11, 2019. Specifically, that the Housing Authority “advised, instructed and encouraged” its employees to “mislead and cover up;” violate laws; “make false reports and statements in official records,” violate “contract and other agreements entered into HUD;” or “commit acts of perjury.” NYCHA argues that these are new claims not stated in either the April 17th or the September 2nd notices of claim and that an amendment to a notice of claim is now time barred. Indeed, a party may not add a new theory of liability which was not included in the notice of claim after the one-year-and-90-day statute of limitations period for a late notice of claim expired. Semprini v. Vil. Of Southampton, 48 AD3d 543, 544 (2d Dept. 2008); C.D. v. Goshen Cent. School Dist., 186 AD3d 1316 [2d Dept 2020]; Levy v. Inc. Vil. of E. Hampton, 193 AD3d 714 [2d Dept 2021]; see, Robinson v. City of New York, 138 AD3d 1093 [2d Dept 2016]. With the exception of “improperly cleaning and repainting over the walls of the hallways” NYCHA’s motion to strike claims from the Bills of Particulars is Granted. The claim that NYCHA failed to properly clean and repaint the walls of the hallways lies within the claim that NYCHA failed to maintain the property, thus will not be stricken. However, the other claims asserted in the various Bills of Particulars amount to new theories of liability and are impermissible claims as they are beyond the scope of the notices of claim. Therefore, NYCHA’s request to strike the other enumerated claims in the bills of particulars is Granted. Lastly, the court notes that movant was not required to submit an affidavit of good faith in relation to their motion to strike certain items of the Bill of Particulars. NYCHA’s motion is based upon the theories of liability asserted in the notices of claim filed in this matter. This matter does not involve a discovery dispute. Under these circumstances, a good-faith affirmation is not required. In accordance with the above, the motion of defendant NYCHA is GRANTED to the extent of dismissing: All claims personal to Officer Guerra and on behalf of the estate of Officer Guerra for his injuries, including conscious pain and suffering and death allegedly due to NYCHA’s alleged negligence; and All claims pursuant to GML 205-e; and All claims for loss of consortium. Further, in accordance with the aforementioned opinion, NYCHA’s request to strike the enumerated claims in the bills of particulars is Granted to the extent noted above. This constitutes the decision and order of the Court. Dated: October 13, 2022
