CESPEDES v. CITY OF N.Y

Plaintiff served a notice of claim alleging serious personal injuries as a result of a fall on a City bus and defendants then served plaintiff with a Notice of Hearing pursuant to Section 1200, et seq. of the Public Authorities Law. Plaintiff failed to appear and commenced this personal injury action. Since there is no prohibition in the Public Authorities Law to the commencement of an action until compliance with a demand for an examination, the IAS court should not have dismissed this action (Public Authorities Law § 1212; Hernandez v. NYCTA, 41 Misc.2d 123,affd 20 A.D.2d 968). While plaintiff may be required to submit to an examination pursuant to Section 1212 (see Herrera v. NYCTA, 234 A.D.2d 207, 208) defendants could only have compelled plaintiff's submission to an examination prior to commencement if their demand had been noticed pursuant to General Municipal Law § 50-h (La Vigna v. County of Westchester, 160 A.D.2d 564). Since defendants failed to notify plaintiff of their reliance on Section 50-h, plaintiff's failure to appear at such examination should not have provided a basis on which to dismiss this action (see e.g. Watson v. NYCHA, 294 A.D.2d 236).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.