FELIPE v. FJC (2025)

Order, Supreme Court, New York County (Jeanine R. Johnson, J.), entered October 11, 2024, which denied the motions of defendants New York City, New York City Department of Homeless Services, and Volunteers of America–Greater New York (collectively, defendants) to dismiss the complaint against them, unanimously reversed, on the law and the facts, without costs, and the motions granted.  The Clerk is directed to enter judgment accordingly.

This action arises from the death of plaintiff's son from a drug overdose at a New York City shelter owned and operated by defendants.  Plaintiff commenced this action against defendants alleging that they negligently failed to provide adequate mental health and substance abuse treatment services to the decedent and failed to promptly respond when the decedent overdosed.  Following a period of over one year during which plaintiff failed to respond to their discovery demands, defendants served plaintiff with a written demand to serve and file a note of issue within 90 days (see CPLR 3216[b]).  Plaintiff failed to respond within the 90–day period, resulting in defendants' motions to dismiss for failure to prosecute.

Although plaintiff's counsel offered a justifiable excuse for the failure to file a note of issue following defendants' service of 90–day notices, plaintiff failed to submit an adequate affidavit of merit demonstrating a meritorious cause of action in opposition to defendants' motions (see CPLR 3216[e];  Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 503, 655 N.Y.S.2d 848, 678 N.E.2d 460 [1997]).  In her affidavit, plaintiff, who had no personal knowledge of the events in question, relied on two unnamed hearsay sources (see Adefioye v. Volunteers of Am., 222 A.D.2d 246, 248, 634 N.Y.S.2d 696 [1st Dept. 1995];  see also Rivera v. Shypri Realty Corp., 198 A.D.3d 448, 449, 152 N.Y.S.3d 565 [1st Dept. 2021]).  Plaintiff offered no excuse for failing to provide affidavits from the shelter residents who supplied her with the information upon which her affidavit was based (Adefioye, 222 A.D.2d at 248, 634 N.Y.S.2d 696), and, in any event, she did not show that defendants' negligence was “a substantial cause of the events” resulting in her son's death (Lynn v. Lynn, 216 A.D.2d 194, 195, 628 N.Y.S.2d 667 [1st Dept. 1995], quoting Derdiarian v. Felix Contr. Co., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666 [1980]).  Contrary to plaintiff's contention, the intake documents from the shelter had little probative value, as the decedent, although reporting that he suffered from a serious mental health condition, denied having a history of substance abuse disorder.