Ordered that the order is reversed insofar as appealed from, the plaintiffs' motion to add Arthur Finger as a party defendant is denied in its entirety, and the defendants' cross motion to dismiss the action insofar as it is asserted on behalf of the infant plaintiff is granted.
The plaintiffs virtually concede that service of a notice of claim upon the person they sought to add as a party was a condition precedent to maintenance of the action against him (see, Education Law § 3813; General Municipal Law § 50-e). However, it is evident that the notice of claim purportedly served on the proposed defendant was untimely and the plaintiffs made no application for leave to serve a late notice of claim. The Supreme Court thus should not have authorized the plaintiffs to join a party against whom the action could not be maintained (see, Pierson v City of New York, 56 N.Y.2d 950; Ceely v New York City Health Hosps. Corp., 162 A.D.2d 492). Moreover, although a notice of claim was timely served on the originally-named defendants, that notice, insofar as it was asserted by the infant plaintiff, was vacated by a conditional order which became self-executing upon her failure to comply with its terms. The defendants' motion to dismiss the action insofar as it is asserted on behalf of the infant plaintiff, submitted to a Supreme Court Justice other than the Justice who issued the conditional order, should have been granted, notwithstanding the infant plaintiff's belated claim that she should not have been directed to appear for examination pursuant to General Municipal Law § 50-h (see, Martin v City of Cohoes, 37 N.Y.2d 162, 165; Scott v Transkrit Corp., 91 A.D.2d 682; see also, Spahn v Griffith, 101 A.D.2d 1011; cf., Bacogiannis v Sayan, 134 A.D.2d 553). Sullivan, J.P., Eiber, Harwood and Balletta, JJ., concur.