Mosley v. City of New York

• Docket Number: 2021-00762,Index No. 527313/19
• Decision Date: 21 June 2023
• Parties: Dar Es Salaam Mosley, etc., respondent, v. City of New York, et al., defendants, New York City Housing Authority, appellant.
• Court: New York Supreme Court — Appellate Division

2023 NY Slip Op 03345

Dar Es Salaam Mosley, etc., respondent,
v.
City of New York, et al., defendants,

New York City Housing Authority, appellant.

No. 2021-00762, Index No. 527313/19

Supreme Court of New York, Second Department

June 21, 2023

Herzfeld & Rubin, P.C., New York, NY (Linda M. Brown of counsel), for appellant.

Law Office of Charles Nathan, P.C., Bronx, NY, for respondent.

MARK C. DILLON, J.P., CHERYL E. CHAMBERS, WILLIAM G. FORD, LILLIAN WAN, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for wrongful death, etc., the defendant New York City Housing Authority appeals from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated November 23, 2020. The order, insofar as appealed from, denied that defendant's cross-motion, in effect, to strike (1) the allegations set forth in sections 9, 10, 12, and 28 of the bill of particulars, (2) the allegations set forth in the first, third, and fourth paragraphs of section 7 of the bill of particulars, (3) the allegations set forth in subsection (e) of section 13 of the bill of particulars, and (4) the allegations set forth in subsection (d) of section 30 of the bill of particulars.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the cross-motion of the defendant New York City Housing Authority, in effect, to strike (1) the allegations set forth in sections 9, 10, 12, and 28 of the bill of particulars, (2) the allegations set forth in the first, third, and fourth paragraphs of section 7 of the bill of particulars, (3) the allegations set forth in subsection (e) of section 13 of the bill of particulars, and (4) the allegations set forth in subsection (d) of section 30 of the bill of particulars is granted.

In 2019, the plaintiff commenced this action, inter alia, to recover damages for wrongful death. The complaint alleged that on March 10, 2018, O'Neal Shurome Mosley (hereinafter the decedent) was shot and killed by unknown assailants at a Brooklyn residence located within the Louis Armstrong public housing complex, which was owned and operated by the defendant New York City Housing Authority (hereinafter NYCHA).

The notice of claim identified the nature of the claim against NYCHA as "[t]o recover monetary, and or equitable relief for personal injuries, conscious pain and suffering resulting from negligence in providing adequate security to part of the Louis Armstrong public housing complex owned by NYCHA; wrongful death and loss of services." In describing the "time when, the place where and the manner in which the claim arose," the notice of claim stated that the area where the decedent was shot "was pitch dark without illumination. The LED Light Towers brought there by NYCHA to provide lighting had not been turned on. These LED Light Towers were not turned on consistently over periods of time from ever since they were brought to the area by the NYCHA." The notice of claim stated that NYCHA was "negligent, careless and reckless in maintaining adequate lighting for its residents at all times," and that such negligence was a proximate cause of the decedent's death.

The plaintiff served a bill of particulars dated February 24, 2020. Thereafter, the plaintiff moved, inter alia, to compel NYCHA to comply with certain discovery demands. NYCHA cross-moved, in effect, to strike certain allegations asserted in the bill of particulars that were not asserted in the notice of claim. In support, NYCHA argued that "[n]othing in plaintiff's Notice of Claim, which alleged only inadequate lighting, would have alerted NYCHA to investigate plaintiff's claims, made for the first time in her Bill of...