| Sialeu v New York City Hous. Auth. |
| 2015 NY Slip Op 00354 [124 AD3d 623] |
| January 14, 2015 |
| Appellate Division, Second Department |
[*1]
| Julienne Sialeu, Appellant, v New York CityHousing Authority, Respondent. |
Pollard Law Group, P.C., New York, N.Y. (Jonathan Pollard of counsel), forappellant.
Kelly D. MacNeal, New York, N.Y. (Nancy M. Harnett and Seth E. Kramer ofcounsel), for respondent.
In an action, inter alia, to recover damages for injury to property, the plaintiffappeals, as limited by her brief, from so much of an order of the Supreme Court, KingsCounty (Pfau, J.), dated March 6, 2013, as granted that branch of the defendant's motionwhich was pursuant to CPLR 3211 (a) (7) to dismiss the complaint for failure to state acause of action.
Ordered that the order is affirmed insofar as appealed from, without costs ordisbursements.
The plaintiff commenced this action against her landlord, the New York CityHousing Authority (hereinafter the NYCHA), inter alia, to recover damages for injury toproperty. She alleged in her complaint that she was evicted from her apartment by a NewYork City Marshal (hereinafter the Marshal) pursuant to a warrant of eviction obtainedby the NYCHA. Her belongings were removed from the apartment by the Marshal, andwere stored in a storage facility. She was later restored to possession of the apartment,and her belongings were returned, but some of her belongings were missing or had beendamaged. The defendant moved, inter alia, pursuant to CPLR 3211 (a) (7) to dismiss thecomplaint for failure to state a cause of action, and the Supreme Court granted thatbranch of the motion.
In determining a motion to dismiss under CPLR 3211 (a) (7), the court mustdetermine "only whether the facts as alleged fit within any cognizable legal theory"(Leon v Martinez, 84 NY2d 83, 87-88 [1994]), by liberally construing thepleading, deeming the facts as alleged to be true, and granting the plaintiff the benefit ofevery possible favorable inference (see id.; First Keystone Consultants, Inc. v DDR Constr. Servs., 74AD3d 1135, 1136 [2010]; Katz v Katz, 55 AD3d 680, 682 [2008]; Fast Track Funding Corp. vPerrone, 19 AD3d 362, 362-363 [2005]).
Applying this standard, the complaint fails to state a cause of action against theNYCHA. Initially, timely service of a notice of claim is a condition precedent to thecommencement of a tort action against the NYCHA (see General Municipal Law§ 50-e [1] [a]; Public Housing Law § 157 [1]; Stiff v City of New York, 114AD3d 843 [2014]; Matterof Katsiouras v City of New York, 106 AD3d 916 [2013]; Decoteau v City of New York,97 AD3d 527 [2012]; Matter of White v New York City Hous. [*2]Auth., 38 AD3d 675 [2007]). Here, the plaintiffdid not allege in her complaint that she served a timely notice of claim beforecommencing this action (seeHendrickson-Brown v City of White Plains, 92 AD3d 638, 639 [2012]; Khela v City of New York, 91AD3d 912 [2012]).
In any event, when an eviction is carried out in accordance with a duly issuedwarrant, a landlord is not liable to the tenant for any damage caused by the Marshal(see Funding Assistance Corp. v Mashreq Bank, 277 AD2d 127 [2000];Campbell v Maslin, 91 AD2d 559 [1982], affd 59 NY2d 722 [1983];cf. Burnell v Ocean Gates Assoc., 133 AD2d 242 [1987]). Since the plaintiffdoes not allege in the complaint that the warrant of eviction was not duly issued, theNYCHA is not liable to the plaintiff for any damage caused by the Marshal.
The plaintiff's remaining contentions are not properly before this Court, as they areraised for the first time on appeal (see Williams v Yang Qi Nail Salon, Inc., 113 AD3d 843,845 [2014]; Van Salisbury vElliott-Lewis, 55 AD3d 725, 726-727 [2008]).
Accordingly, the Supreme Court properly granted that branch of the NYCHA'smotion which was pursuant to CPLR 3211 (a) (7) to dismiss the complaint. Dillon, J.P.,Miller, Maltese and Duffy, JJ., concur.