Supreme Court, Queens County, March 29, 2018

Smith Mazure Director Wilkins Young & Yagerman, P.C., New York City (Constantine G. Vlavianos of counsel), for defendants.

Rosato & Lucciola, P.C., New York City (Joseph S. Rosato of counsel), for plaintiff.

It is ordered that the motion is determined as follows:

On November 14, 2013, plaintiff was struck by defendants' bus at Liberty Avenue and 160th Street, County of Queens, City and State of New York. On December 13, 2013, plaintiff served defendants with her notice of claim. On June 11, 2014, plaintiff commenced this action by filing a summons and complaint. The issue was joined by defendants' service of an answer, dated September 18, 2014.

On March 6, 2017,^[FN1] this action was scheduled for trial in the Trial Scheduling Part and was adjourned to April 13, 2017. On April 13, 2017, this matter was sent to this court for trial and defendants informed the court of the pending instant motion, dated April 6, 2017, and returnable on May 8, 2017. Defendants' trial counsel moved to dismiss the action on the ground that plaintiff had not testified at a statutory hearing. As the motion was substantive and, if granted, negated the reason for a trial, this court stayed the trial pending the determination of defendants' motion. As a result, this court advanced the motion and set a motion schedule, reserving decision.

Plaintiff contends that the motion should be summarily denied. Contrary to plaintiff's contention, defendants' motion is not one for summary judgment and therefore defendants are not time-barred from bringing this motion to dismiss.

Defendants move for dismissal of plaintiff's complaint on the ground that plaintiff failed to appear for oral examination in accordance with Public Authorities Law § 1212 (5). Public Authorities Law § 1212 (5) specifies that "[t]he authority may require any person, presenting for settlement an account or claim for any cause whatever against the authority, to be sworn . . . [and] answer orally as to any facts relative to such account{**62 Misc 3d at 588} or claim." Nowhere is there language mandating a plaintiff's appearance for oral examination prior to commencing an action against the authority. Furthermore, section 1212 insofar as it refers to the General Municipal Law, does so only with respect to General Municipal Law § 50-e and the serving of a notice of claim. Nevertheless, the Appellate Division, Second Department has held that compliance with Public Authorities Law § 1212 (5) is a condition precedent to commencement of an action (Vartanian v City of New York, 48 AD3d 673 [2d Dept 2008]; Knotts v City of New York, 6 AD3d 664 [2d Dept 2004]). The Appellate Division, First Department is at odds with the Second Department, holding that compliance with Public Authorities Law § 1212 (5) is not a condition precedent to filing suit (see Cespedes v City of New York, 301 AD2d 404 [1st Dept 2003]).

Further, this court has reviewed the General Municipal Law. While General Municipal Law § 50-h (5) cautions that no action shall be commenced against the City unless the claimant complied with a served demand, it also states,

"If such examination is not conducted within ninety days of service of the demand, the claimant may commence the action. The action, however, may not be commenced until compliance with the demand for examination if the claimant fails to appear at the hearing or requests an adjournment or postponement beyond the ninety day period."

Here, defendants submit a demand letter, dated January 6, 2014, addressed to plaintiff's [*3]counsel, requesting plaintiff to appear and testify on February 5, 2014, at 10:00 a.m., at their office, located at 130 Livingston Street, Brooklyn, New York. Defendants further submit an affidavit from Linda Jahns, Director of Claims Processing for New York City Transit Authority (NYCTA), whose responsibilities include "supervising the processing of documents regarding claims involving the Authority." Jahns refers to the usual practice of mailing of such letters. Jahns affirms that upon her review of the documents relating to this case, the demand letter was sent. However, Jahns asserts an incorrect date of February 15, 2014. On reply, defendants proffer a new, corrected affidavit by Jahns, citing the date of February 5, 2014.

Also, defendants' reply contains facts not applicable in this case. Defendants refer to a hearing in April that was adjourned to June 20. Defendants further refer to a sworn statement by{**62 Misc 3d at 589} Gwen Turner. There is no evidence before this court that the hearing, scheduled for February 5, 2014, was adjourned; defendants have not submitted a written stipulation regarding any adjournment, nor have they submitted an affidavit of anyone by the name of Gwen Turner. Moreover, the adjournment portion of the demand letter submitted is blank and no stenographic record is submitted recording that plaintiff did not appear. The instant case is therefore distinguishable from the holding in Vartanian, where it was undisputed that NYCTA adjourned an oral examination pursuant to Public Authorities Law § 1212 (5) six times at the plaintiff's request.

Evidence of an appropriate mailing of a notice creates a rebuttable presumption that the intended recipient actually received it (Matsil v Utica First Ins. Co., 150 AD3d 982 [2d Dept 2017]). While a conclusory denial is insufficient to overcome this presumption, the sworn affidavits submitted herein of the firm's principal attorney and calendar clerk, both asserting lack of receipt, constitute sufficient evidence to rebut the presumption of delivery. Furthermore, the lack of a stenographic record lends credence to plaintiff's position that no such letter was mailed and/or received. As such, there is no conclusive evidence before the court that plaintiff "refuse[d] to be examined" (see generally Lo Guercio v New York City Tr. Auth., 31 AD2d 759, 760 [2d Dept 1969]).

The facts of this case are unique and appear to be one of first impression to this court in this Department. Thus, it is necessary for the court to look to the legislative intent behind the relevant statutes. "General Municipal Law § 50-h [was enacted] 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" (Nasca v Town of Brookhaven, 10 AD3d 415, 416 [2d Dept 2004]). This principle applies to Public Authorities Law § 1212 as well, which references the notice of claim provision of General Municipal Law. The enactment of these statutes was meant to afford the municipality an opportunity to investigate the notice of claim and determine the merits of the claim before the initiation of litigation and thereby forestall unnecessary lawsuits (see 4th Rep of Joint Legis Comm on Municipal Tort Liability, 42 NY Legis Docs 24 [1959]). Alternatively stated, the purpose of these statutes is to explore the merits of a claim while information is readily available, with a view toward settlement and without the expense and time involved in litigation.{**62 Misc 3d at 590}

The court notes that this action has proceeded well into advanced stages of litigation, rendering the intended purpose of the statutes moot. Indeed, holding the statutory hearing now will not preserve any facts which defendants could have uncovered before litigation ensued. Plaintiff did testify at an examination before trial on March 13, 2015, two years before this matter [*4]was sent to this court for trial. Furthermore, this matter has been adjourned and scheduled for trial multiple times in the Trial Scheduling Part since the preliminary conference, held on October 20, 2014, and compliance conference, held on April 27, 2015. Moreover, several motions were made and have been decided by this court as the "Transit Part," including one for summary judgment. By decision, entered on March 30, 2015, this court granted plaintiff summary judgment on the issue of liability. In opposing plaintiff's motion for summary judgment, defendants failed to raise the issue now before the court. In fact, defendants never raised this issue until now.

Defendants failed to bring such motion in an earlier stage of the case, despite having opportunities to do so. In a decision, entered on April 19, 2017, this court denied defendants' motion to compel plaintiff to appear for a further deposition and to submit to further independent medical examinations in light of plaintiff's medical treatment and supplemental medical exchanges. Ironically, in that motion, defendants asserted that they were prejudiced because plaintiff proffered the medical records on the eve of trial. Subsequently, by order dated June 21, 2017, the Appellate Division denied the application by defendants to stay the trial, pending the hearing and determination of an appeal from the April 19, 2017 decision and at no time thereafter did defendants assert plaintiff's failure to appear at a 50-h hearing.

Notably, defendants do not feign prejudice in now proceeding to trial without 50-h testimony of plaintiff. Indeed, defendants have received the benefit of discovery, have participated in extensive motion practice and have had the opportunity to discover all aspects of plaintiff's case and to settle this action. Plaintiff has also received the opportunity to discover defendants' contentions throughout the litigation. Both parties have been aware of the possibility of resolving this claim. Notably, this case has advanced to trial by the parties announcing "ready" for trial after being involved in motion practice since 2014. It therefore appears that the absence of a 50-h hearing{**62 Misc 3d at 591} in this case and plaintiff's testimony at same has not affected the rights of nor prejudiced any party.

Upon review of the unique facts of this case, the court concludes that to hold a 50-h hearing at this very late stage would be futile and to dismiss for what now is a "technicality" is to choose "form over substance." Therefore, dismissing plaintiff's complaint, albeit without prejudice,^[FN2] due to a technical defect noticed by defendants on the eve of trial, namely the lack of plaintiff's 50-h hearing, would not lead to a resolution of this action on the merits.

Defendants' motion to dismiss plaintiff's complaint is denied in all respects and, accordingly, the stay is lifted.

"[i]f an action is timely commenced and is terminated in any other manner than . . . a failure to obtain personal jurisdiction over the defendant . . . or a final judgment upon the merits, the plaintiff . . . may commence a new action upon the same transaction or occurrence . . . within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period."