The question in this case is whether a plaintiff is entitled to observe her co-plaintiff’s oral examination required under General Municipal Law § 50-h.
After a plaintiff files a notice of claim against a municipality, General Municipal Law (GML) § 50-h grants the municipality the right to conduct an oral examination of the plaintiff. The provision states that the municipality “shall have the right to demand an examination of the claimant relative to the occurrence and extent of the injuries or damages for which claim is made,” which “may include a physical examination of the claimant by a duly qualified physician.” GML § 50-h(1). It also states that, “[i]f the party to be examined desires, he or she is entitled to have such examination in the presence of his or her own personal physician and such relative or other person as he or she may elect.” Id. Compliance with a demand for a GML § 50-h examination is a condition precedent to suit against a municipality.
In this case, plaintiffs are the driver and passenger in a car that was struck by a vehicle driven by an employee of defendant New York City. The City demanded GML § 50-h examinations of each plaintiff, which plaintiffs agreed to attend only if each could observe the other’s examination. The City refused, and neither examination occurred. The City then moved for summary judgment based on plaintiffs’ noncompliance with GML § 50-h demand. Supreme Court granted the motion and dismissed the action.
A divided panel of the Second Department affirmed. The majority concluded that GML § 50-h afforded plaintiffs no right to attend each other’s deposition. In the majority’s view, the provision authorizing a plaintiff to have any “other person” at her examination was limited to the physical examination authorized by GML § 50-h; that right did not, in the majority’s view, extend to plaintiffs’ oral examination. The dissent disagreed, calling the majority’s approach a “strained interpretation” of the statute. In the dissenters’ view, there was no basis in the statute to deny plaintiffs’ request to attend each other’s examination and, therefore, a strict construction of the statute required granting that request.
Plaintiffs appealed to the Court of Appeals as a matter of right.
Return to the case page for Colon v. Martin.