Kingston v. New York City Department of Homelessness Services

Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered November 16, 2012, which granted defendant’s motion to dismiss the complaint, unanimously affirmed, without costs. Plaintiff, who commenced an action against defendant alleging, among other things, that defendant failed to maintain the shelter where she resided in a safe and sanitary condition, failed to exhaust her administrative remedies prior to commencing this action, inasmuch as she was entitled to request a fair hearing to challenge the adequacy of the shelter’s services, but failed to do so (see 18 NYCRR 358-3.1 [b] [6]; 18 NYCRR 358-3.2 [b] [3]; see also Jenkins v State of N.Y. Div. of Hous. & Community Renewal, 264 AD2d 681, 682 [1st Dept 1999]). Plaintiffs action is also barred by the doctrine of collateral estoppel. Plaintiff previously commenced an action in Housing Court seeking correction of alleged violations of the Administrative Code by defendant, and the issues raised in that action, which plaintiff had a full and fair opportunity to litigate, and which were decided against her, are the same issues she raises in this action (see Ventur Group, LLC v Finnerty, 80 AD3d 474, 475 [1st Dept 2011]; CPLR 3211 [a] [5]). [627] Plaintiffs retaliation claim, based on the allegation that the director of the shelter where plaintiff resided encouraged other residents to fight with her, was also properly dismissed. Even assuming the allegation to be true, such action on the part of the director cannot be said to be committed in furtherance of defendant’s business, and within the scope of the director’s employment (see N.X. v Cabrini Med. Ctr., 97 NY2d 247, 251 [2002]). Furthermore, plaintiff lacked standing to bring a cause of action on behalf of the New York City Human Resources Administration, since she does not have the authority to act on the agency’s behalf (see e.g. Hill v Coates, 78 AD3d 439, 440 [1st Dept 2010], lv denied 16 NY3d 712 [2011]). Concur — Moskowitz, J.P, Richter, Manzanet-Daniels, Clark and Kapnick, JJ.