JONES v. NEW YORK CITY HOUSING AUTHORITY (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Caroline Piela Cohen, J.), dated May 30, 2024.  The order granted the defendant's motion to dismiss the complaint for failure to comply with General Municipal Law § 50–h and Public Housing Law § 157(2).

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion to dismiss the complaint for failure to comply with General Municipal Law § 50–h and Public Housing Law § 157(2) is denied.

On September 8, 2021, the plaintiff, a residential tenant in an apartment building owned and managed by the defendant, New York City Housing Authority, allegedly was injured when she slipped and fell on soapy water in the kitchen of her apartment.  On October 5, 2021, the plaintiff served a notice of claim upon the defendant, alleging that the soapy water had leaked from exposed pipes in the apartment.  On or about December 3, 2021, the defendant served the plaintiff's counsel with a demand for an oral examination of the plaintiff pursuant to General Municipal Law § 50–h and Public Housing Law § 157(2), which it noticed for February 1, 2022.  On January 31, 2022, the day before the examination was scheduled to take place, the plaintiff's counsel advised the defendant that it no longer represented the plaintiff and that the examination could not proceed.

In November 2022, the plaintiff commenced this action against the defendant to recover damages for personal injuries.  The defendant moved to dismiss the complaint on the ground that the plaintiff failed to comply with General Municipal Law § 50–h and Public Housing Law § 157(2).  The plaintiff opposed the motion on the ground that her failure to appear at the examination constituted excusable neglect.  In an order dated May 30, 2024, the Supreme Court granted the defendant's motion.  The plaintiff appeals.

On appeal, the plaintiff has abandoned the argument she originally made in opposition to the defendant's motion and contends instead that it was the defendant's obligation to reschedule the examination because it had been indefinitely postponed by her prior counsel, but the defendant failed to do so.  Although this contention is raised for the first time on appeal, we reach the contention because it presents a pure question of law appearing on the face of the record which could not have been avoided if raised at the proper juncture (see e.g. Federal Natl. Mtge. Assn. v Walter, 199 AD3d 889).

“ ‘The purpose of General Municipal Law § 50–h is to enable a municipality to make a prompt investigation of the circumstances of a claim by examining the claimant about the facts of the claim’ ” (Ramirez v. New York City Hous. Auth., 243 AD3d 702, 702–703, quoting Colon v. Martin, 170 AD3d 1109, 1110, aff'd 35 NY3d 75).  “The oral examination of a claimant pursuant to General Municipal Law § 50–h serves to supplement the notice of claim and provides an investigatory tool to the municipality, with a view toward settlement” (id. at 703 [internal quotation marks omitted] ).  Generally, such examination must be conducted within 90 days of the service of the demand (see General Municipal Law § 50–h[5] ).  “ ‘Compliance with a demand for an oral examination pursuant to General Municipal Law § 50–h and Public Housing Law § 157(2) is a condition precedent to the commencement of an action against the defendant New York City Housing Authority’ ” (Ramirez v. New York City Hous. Auth., 243 AD3d at 703, quoting Boone v. City of New York, 92 AD3d 709, 710), and a plaintiff's failure to so comply warrants dismissal of the action (see A.R. v. Urrutia, 212 AD3d 670, 670;  Riabaia v New York City Health & Hosps.  Corp., 170 AD3d 1062, 1063).

However, pursuant to General Municipal Law § 50–h(5), “[i]f the claimant requests an adjournment or postponement beyond the ninety day period, the [municipality] shall reschedule the [examination] for the earliest possible date available.”  Thus, “[w]hen ․ the [examination] has been postponed indefinitely beyond 90 days after service of the demand and the municipality does not reschedule the [examination], a plaintiff's failure to appear for a[n examination] will not warrant dismissal of the complaint” (October v. Town of Greenburgh, 55 AD3d 704, 704;  see General Municipal Law § 50–h[5] ).

Here, the defendant was advised by the plaintiff's former counsel on the eve of the scheduled examination that the examination could not proceed, and thereafter, the defendant failed to set another date for the examination or serve the plaintiff with a subsequent demand.  Since the defendant failed in its obligation to reschedule the examination for the earliest possible date available, under the circumstances of this case, the plaintiff's failure to appear for an examination prior to commencing this action did not warrant dismissal of the complaint (see General Municipal Law § 50–h[5];  Artup v. Simeone, 189 AD3d 1143, 1146;  Vargas v. City of Yonkers, 65 AD3d 585;  October v. Town of Greenburgh, 55 AD3d at 704;  cf.  Cook v. Village of Greene, 95 AD3d 1639).

IANNACCI, J.P., DOWLING, LANDICINO and LOVE, JJ., concur.