In Hymowitz v. City of New York (NYLJ 1202676425279 at 1, App. Div., 2nd, decided October 15, 2014), the plaintiff, the administrator/representative of a decedent's estate brought a wrongful death action against the City of New York after the decedent was struck by a bicyclist on a bicycle trail near Cunningham Park in Queens County. Soon after the accident, counsel for the decedent served a notice of claim on the City (a prerequisite for a lawsuit against a municipality), and thereafter the City served a demand for a hearing pursuant to General Municipal Law §50-h. Counsel for the decedent responded back to the City that they were unable to attend a hearing as a representative of decedent's estate was not appointed yet.
After a representative of decedent's estate was appointed, then plaintiff informed the City that it was available for the 50-H hearing. However, the City failed to respond to plaintiff's notice of availability, and as a result plaintiff moved forward and filed a summons and complaint against the City. Nearly two years later though, on June 3, 2013, the City moved to dismiss the complaint for
failure to comply with General Municipal Law §50-h, and the Queens County Supreme Court
granted the motion.
Plaintiff appealed, and the Appellate Division, Second Department reversed the trial court's decision, stating as follows: "Compliance with a demand for a General Municipal Law §50-h examination
is a condition precedent to the commencement of an action against a
municipal defendant, and the failure to so comply warrants dismissal of
the action...[t]he failure to submit to such an
examination, however, may be excused in exceptional circumstances, such
as extreme physical or psychological incapacity...[u]nder the circumstances of this case, the failure to appear for an
examination pursuant to General Municipal Law §50-h should have been
excused in light of the decedent's death before service of the demand
for her examination, the administrator's willingness to appear at a
hearing, and the defendants' failure to demand the examination of any
other person...[a]ccordingly, the defendants' motion to dismiss the complaint for
failure to comply with their demand to examine pursuant to General
Municipal Law §50-h should have been denied."
Salvatore R. Marino, Esq.