Defendant.

This is a motion by the defendant New York City Housing Authority for summary judgment. For the reasons that follow the motion is granted, and the complaint and any cross-claims against the defendant Housing Authority are severed and dismissed.

This is a lead-paint poisoning case, in which the infant plaintiff allegedly ingested paint chips containing lead-based paint, which had flaked off of the walls in his family's apartment. The apartment building was owned by the defendants Dennis and Elaine Lovell. The movant Housing Authority has no direct connection to the building, and acted here as a so-called ASection 8" administrator of housing subsidies pursuant to the federal Public Housing Act, 42 USC '' 1437a, et seq. It is alleged by the plaintiffs that as part of its duties under applicable regulations, the Housing Authority was required to inspect the apartment for lead-based paint, but that it failed to do so, leading to the injury to the infant plaintiff. It is also claimed that the Housing Authority had a common-law duty to inspect and warn.

New York courts which have considered the matter have concluded that the Housing Authority may not be sued in tort, either on a common-law theory or pursuant to the Public Housing Act, for an alleged failure to make proper inspections of apartments where, as here, it acts only as a Section 8 administrator (Cardona v 642-652 Willoughby Avenue Corp., 182 Misc.2d 223; Missouri v Boyce, 182 Misc.2d 312 [collecting cases]; see also Roman v. Morace, n.o.r., 1997 WL 777844 [S.D.N.Y. Dec. 15, 1997]; Lindsay v. New York City Hous. Auth., n.o.r.,1999 WL 104599 [E.D.N.Y. Feb. 24, 1999]; see also Roseberry v US, 736 F.Supp. 408 [USDC, D.N.H., 1990][no such tort action against the Veterans Administration]). The court is persuaded by these well-reasoned decisions, and follows them here. Cases such as New York City Coalition to End Lead Poisoning v Koch, 138 Misc.2d 188, aff=d 139 A.D.2d 404; and Hurt v Philadelphia Housing Authority, 806 F.Supp. 515, which recognize a private right of action to enforce the inspection requirements of the Public Housing Act, are nonetheless not to the contrary. These cases involved the right to compel the municipal authorities to conduct inspections in general, and did not involve purely private suits to cover damages for individual personal injuries.

The plaintiff takes the position that this issue was already resolved in her favor by the prior determination of Mr. Justice Schulman, dated March 28, 1995, granting leave to serve a late notice of claim, and that his determination is the law of the case. The doctrine of Alaw of the case@ is a variety of res judicata, and is applicable only where the issues raised on the motion sub judice were in fact decided on the prior motion (see, Teller v Bill Hayes, Ltd., 213 AD2d 141; Del Castillo v Bayley Seton Hospital, 232 AD2d 602).

A motion for a late notice of claim, however, does not ordinarily involve the question of the validity of the claim. It is well settled that A[t]he key factors in determining whether an application for leave to serve a late notice of claim should be granted are whether the petitioner has demonstrated a reasonable excuse for the failure to serve a timely notice of claim, whether the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual or a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in maintaining its defense on the merits@ (Matter of Townsend v NYCHA, 194 AD2d 795; Matter of Amin v City of NY, 243 AD2d 467). The merit of the claim is not a factor in granting remedial relief (Fritsch v Westchester County Dept. of Transportation, 170 A.D.2d 602). Justice Schulman's decision shows that he applied these well-established criteria, and there is no indication from his decision that he found it necessary in this case to evaluate the legal sufficiency of the plaintiff's claim against the Housing Authority. Therefore, the doctrine of law of the case does not apply here.

A short-form order embodying this decision has been signed herewith.

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                                                                                                                    J.S.C.