Matter of Cirillo v. New York City Hous. Auth.

Opinion

Matter of Cirillo v New York City Hous. Auth.

2026 NY Slip Op 04852

August 5, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

In the Matter of Shannon Cirillo, et al., appellants,

v

New York City Housing Authority, respondent.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 5, 2026

2024-12592, (Index No. 705772/24)

Valerie Brathwaite Nelson, J.P.

Lillian Wan

Laurence L. Love

Elena Goldberg Velazquez, JJ.

Decolator, Cohen & DiPrisco, LLP, Garden City, NY (Carolyn M Canzoneri of counsel), for appellants.

Herzfeld & Rubin, P.C., New York, NY (Miriam Skolnik of counsel), for respondent.

[*1]

DECISION & ORDER

In a proceeding pursuant to General Municipal Law § 50-e(6) for leave to amend a notice of claim, the petitioners appeal from an order of the Supreme Court, Queens County (Denise N. Johnson, J.), entered October 21, 2024. The order denied the petition and, in effect, dismissed the proceeding.

ORDERED that the order is affirmed, with costs.

On June 15, 2023, while acting within the scope of their employment and duties as police officers, the petitioners allegedly were injured when a tenant at a New York City Housing Authority (hereinafter NYCHA) premises located in Queens resisted arrest. On July 28, 2023, the petitioners served notices of claim upon NYCHA, alleging that NYCHA was negligent, inter alia, in failing to evict the tenant, failing to warn the petitioners, and failing to protect the petitioners from foreseeable harm, and a claim pursuant to General Obligations Law § 11-106. Subsequently, the petitioners commenced this proceeding pursuant to General Municipal Law § 50-e(6) for leave to amend the notices of claim to assert a claim pursuant to General Municipal Law § 205-e predicated upon alleged violations of Administrative Code of the City of New York § 28-301.1, Multiple Dwelling Law § 78, Penal Law §§ 205.30, 120.00, 120.00(2), and 120.05(3), and Real Property Law § 231. In an order entered October 21, 2024, the Supreme Court denied the petition and, in effect, dismissed the proceeding. The petitioners appeal.

"Service of a notice of claim within 90 days after accrual of the claim is a condition precedent to commencing an action against NYCHA" (Matter of St. Hilaire v New York City Hous. Auth., 216 AD3d 645, 647; see General Municipal Law § 50-e[1][a]; Public Housing Law § 157[2]). Pursuant to General Municipal Law § 50-e(6), "a court has discretion to grant leave to serve an amended notice of claim where the error in the original notice was made in good faith and where the other party has not been prejudiced thereby" (Sinclair v City of New York, 242 AD3d 919, 921 [internal quotation marks omitted]). Moreover, "[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" (Macareno v New York City Tr. Auth., 206 AD3d 642, 643 [internal quotation marks omitted]).

Here, the Supreme Court providently exercised its discretion in denying the petition. The petitioners failed to demonstrate that the alleged omission to assert a claim pursuant to General Municipal Law § 205-e predicated upon the alleged statutory violations in the original notices of claim was made in good faith (see Matter of St. Hilaire v New York City Hous. Auth., 216 AD3d at 647; cf. Mitchell v Jimenez, 233 AD3d 773, 776). Contrary to the petitioners' contention, the proposed amendments to the notices of claim constituted new theories of liability and were "therefore outside the purview of General Municipal Law § 50-e(6)" (Mitchell v Jimenez, 233 AD3d at 775 [internal quotation marks omitted]; see Mosley v City of New York, 217 AD3d 857, 859-860). The petitioners also failed to meet their initial burden of demonstrating the absence of prejudice to NYCHA arising from the proposed amendments (see Matter of Newcomb v Middle County Cent. Sch. Dist., 28 NY3d 455, 466). Therefore, the burden did not shift to NYCHA to show prejudice (see generally id. at 467).

Accordingly, we affirm the order.

BRATHWAITE NELSON, J.P., WAN, LOVE and GOLDBERG VELAZQUEZ, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court