Russ v. New York City Housing Authority

• Decision Date: 15 November 1993
• Parties: In the Matter of Dazmaine RUSS, etc., Appellant, v. NEW YORK CITY HOUSING AUTHORITY, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 338

603 N.Y.S.2d 338

198 A.D.2d 361

In the Matter of Dazmaine RUSS, etc., Appellant, v. NEW YORK CITY HOUSING AUTHORITY, Respondent.

Supreme Court, Appellate Division,

Second Department.

Nov. 15, 1993.

Fitzgerald & Fitzgerald, P.C., Yonkers (Robert C. Agee, of counsel), for appellant.

Kanterman, Taub & Breitner, P.C., New York City (Milan P. Spisek, of counsel), for respondent.

Before LAWRENCE, J.P., and EIBER, O'BRIEN and SANTUCCI, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to General Municipal Law § 50-e for leave to serve a late notice of claim, the petitioner appeals, (1) as limited by his brief, from so much of an order of the Supreme Court, Kings County (Shaw, J.), dated May 31, 1991, as, upon reargument, adhered to its prior determination denying the application, and (2) from an order of the same court, dated May 31, 1993, which granted the respondent's motion to quash the petitioner's subpoena duces tecum.

ORDERED that the orders are affirmed, with one bill of costs.

On June 6, 1988, the infant Dazmaine Russ was shot in the head as he was playing on the grounds of the Walt Whitman Housing Project in Brooklyn, New York. The infant was an innocent bystander caught up in an outburst of drug-related gang warfare. The Walt Whitman Housing Project is owned and maintained by the respondent, the New York City Housing Authority (hereinafter the NYCHA). Approximately two and one-half years after the occurrence, the infant's mother, Evelyn Cooper, sought leave to serve a late notice of claim against the NYCHA (see, General Municipal Law § 50-e[5]. Ms. Cooper alleges that the failure to timely serve a notice of claim was attributable to the injuries suffered by the infant and the emotional trauma suffered by Ms. Cooper herself. In addition, Ms. Cooper alleges that the NYCHA had actual notice of the claim since the shooting was reported in local newspapers and was investigated by both the New York City Housing Authority Police and the New York City Police Department (hereinafter the NYPD).

Contrary to Ms. Cooper's contentions, neither the newspaper reports nor anything else in the record demonstrates that this incident was ever investigated by the New York City Housing Authority Police. Thus we cannot conclude that the NYCHA received actual notice of the event in this fashion. Even if we assume that the NYCHA police conducted an investigation, it would not necessarily mean that the NYCHA "acquired actual knowledge of the essential facts constituting the claim" (General Municipal Law § 50-e[5], since a police investigation into a crime is "geared toward finding the [perpetrator] and not toward the preparation of [the] possible claim for pain and suffering on the basis of alleged negligence by the [NYCHA]" (Chattergoon v. New York City Hous. Auth., 161 A.D.2d 141, 142, 554 N.Y.S.2d 859, affd. 78 N.Y.2d 958, 574 N.Y.S.2d 934, 580 N.E.2d 406; see also, Caselli v. City of New York, 105 A.D.2d 251, 483 N.Y.S.2d 401). Nor may Ms. Cooper rely upon the fact that a NYPD "Aided Report" was prepared in connection with the incident as providing actual notice to the NYCHA. As a general rule, knowledge of an accident or occurrence by a municipality's police or fire department cannot be imputed to another public or municipal corporation (see, Caselli v. City of New York, supra; Matter of Perry v. City of New York, 133 A.D.2d 692, 519 N.Y.S.2d 862; Tarquinio v. City of New York, 84 A.D.2d 265, 445 N.Y.S.2d 732, affd. 56 N.Y.2d 950, 453 N.Y.S.2d 615, 439 N.E.2d 331; White v. City of New York, 180 A.D.2d 324, 585 N.Y.S.2d 41, affd. 81 N.Y.2d 955, 598 N.Y.S.2d 759, 615 N.E.2d 216). The lack of actual knowledge, coupled with the lengthy delay in seeking leave to file the late notice of claim, clearly prejudiced the NYCHA's ability to defend the claim on its...