VARTANIAN v. New York City Transit Authority, appellant. (2008)

In an action to recover damages for personal injuries, the defendant New York City Transit Authority appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Flug, J.), dated July 13, 2006, as denied its motion to dismiss the complaint insofar as asserted against it on the ground that the plaintiff failed to appear for an oral examination in accordance with Public Authorities Law § 1212(5).

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the defendant New York City Transit Authority to dismiss the complaint insofar as asserted against it is granted.

Compliance with Public Authorities Law § 1212(5) is a condition precedent to the commencement of an action against the New York City Transit Authority (hereinafter the NYCTA) (see Lynch v. New York City Tr. Auth., 12 A.D.3d 644, 646, 784 N.Y.S.2d 900;  Knotts v. City of New York, 6 A.D.3d 664, 665, 775 N.Y.S.2d 188;  Lo Guercio v. New York City Tr. Auth., 31 A.D.2d 759, 760, 297 N.Y.S.2d 646).   The plaintiff does not dispute the NYCTA'S assertion that an oral examination pursuant to Public Authorities Law § 1212(5) was adjourned six times at her request, and there is no evidence that she rescheduled a new examination date prior to the commencement of this action (see Scalzo v. County of Suffolk, 306 A.D.2d 397, 398, 760 N.Y.S.2d 879;  Matter of Pelekanos v. City of New York, 264 A.D.2d 446, 447, 694 N.Y.S.2d 694;  Best v. City of New York, 97 A.D.2d 389, 468 N.Y.S.2d 7, affd. 61 N.Y.2d 847, 473 N.Y.S.2d 975, 462 N.E.2d 152).   The plaintiff's failure to remain in contact with her attorney and her inability to attend the examination due to her new job did not constitute sufficient reasons or exceptional circumstances that would excuse her failure to appear for the repeatedly-adjourned examination (see Misek-Falkoff v. Metropolitan Tr. Auth., 44 A.D.3d 629, 843 N.Y.S.2d 155;  Bernoudy v. County of Westchester, 40 A.D.3d 896, 897, 837 N.Y.S.2d 187;  Arcila v. Incorporated Vil. of Freeport, 231 A.D.2d 660, 661, 647 N.Y.S.2d 544).   Accordingly, the NYCTA's motion to dismiss the complaint insofar as asserted against it should have been granted.