As we explained in our case summary, the question in this case was whether a plaintiff was entitled to observe her co-plaintiff’s oral examination required under General Municipal Law § 50-h. The Court (Feinman, J.) held that the statute created no such entitlement.
This case involved two plaintiffs who were injured in the same accident and sought to sue the City in separate lawsuits. Before they did, the City demanded that they each submit to a pre-suit oral examination, as was its right under General Municipal Law (GML) § 50-h. Plaintiffs sought to attend each other’s examination, and the City refused. No examinations were conducted and, that being a condition to suit, plaintiffs’ subsequent actions were dismissed.
The case thus required the Court to interpret GML § 50-h(1). In pertinent part, that provision entitled the City to demand plaintiffs’ examination before suit, “which examination shall be upon oral questions . . . and may include a physical examination of the claimant by a duly qualified physician.” In the next sentence, the provision stated 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.” In plaintiffs’ view, the second quoted sentence entitled them to bring a “relative or other person” to the pre-suit oral examination demanded by the City.
The Court disagreed. It held that the first sentence of GML § 50-h(1) referenced two examinations: an oral examination, and a physical examination with a physician. Applying the last antecedent rule, the Court held that the phrase “such examination” in the second sentence of GML § 50-h(1) referenced the physical examination, meaning that a claimant was entitled to bring “her own personal physician and such relative or other person” to the physical examination, but not the oral examination. According to the Court, legislative history and other provisions of the statute confirmed this conclusion.
Judge Fahey concurred in a separate opinion to state that CPLR provisions governing depositions did not apply to GML § 50-h(1).