Colon v. Martin

• Decision Date: 27 March 2019
• Docket Number: Index No. 101093/15,2016–10392
• Citation: 170 A.D.3d 1109,97 N.Y.S.3d 311
• Parties: Wilfredo COLON, et al., Appellants, v. Willie MARTIN, Jr., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

170 A.D.3d 1109

97 N.Y.S.3d 311

Wilfredo COLON, et al., Appellants,

v.Willie MARTIN, Jr., et al., Respondents.

2016–10392

Index No. 101093/15

Supreme Court, Appellate Division, Second Department, New York.

Argued - December 14, 2017

Decided March 27, 2019

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Richmond County (Thomas P. Aliotta, J.), dated August 1, 2016. The order, insofar as appealed from, granted the defendants' cross motion for summary judgment dismissing the complaint for failure to comply with General Municipal Law § 50-h.

ORDERED that the order is affirmed insofar as appealed from, with costs.

This action arises from a motor vehicle accident that occurred on the Staten Island Expressway, in Richmond County, on January 14, 2015. The plaintiff Wilfredo Colon was operating a vehicle in which the plaintiff Ramona Cordero was a passenger, when that vehicle was allegedly struck in the rear by a vehicle operated by the defendant Willie Martin, Jr., and owned by the defendants New York City Department of Environmental Protection and the City of New York.

On February 12, 2015, the plaintiffs filed a notice of claim against the defendants. On March 23, 2015, the defendants sent the plaintiffs' counsel two notices, one as to each plaintiff, advising that each plaintiff was "mandated by law" to appear and be orally examined under oath at hearings pursuant to General Municipal Law § 50-h (hereinafter the 50-h hearings).

On June 25, 2015, the plaintiffs appeared for the 50-h hearings. The plaintiffs' counsel would not proceed unless each plaintiff was permitted to be present while the other testified. The defendants' counsel indicated that it was the defendants' policy to conduct individual hearings for each claimant. The defendants' counsel added that 50-h hearings were conditions precedent to a lawsuit and the defendants were "not waiving any right to any hearing." The plaintiffs' counsel countered that each plaintiff had "the absolute right" to sit in on the other's testimony. The plaintiffs' counsel asserted that the plaintiffs were "ready, willing and able" to proceed and that they were not "refusing to proceed." The plaintiffs' counsel added, "we just want the hearing held with both [plaintiffs] in the room and the City is refusing to do so." It is undisputed that the 50-h hearings were not conducted.

Nevertheless, on or about August 25, 2015, the plaintiffs commenced the instant action. In the complaint, the plaintiffs alleged that the defendants "constructively waived" the 50-h hearings. Thereafter, as relevant herein, the defendants cross-moved for summary judgment dismissing the complaint on the ground that the plaintiffs failed to comply with the 50-hearing requirement. The Supreme Court, inter alia, granted the defendants' cross motion.

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 (see Nasca v. Town of Brookhaven, 10 A.D.3d 415, 416, 781 N.Y.S.2d 137 ). 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 (see Di Pompo v. City of Beacon Police Dept., 153 A.D.3d 597, 598, 57 N.Y.S.3d 426 ; Alouette Fashions v. Consolidated Edison Co. of N.Y., 119 A.D.2d 481, 487, 501 N.Y.S.2d 23, affd 69 N.Y.2d 787, 513 N.Y.S.2d 114, 505 N.E.2d 624 ). "Compliance with a demand for a General Municipal Law § 50-h examination is a condition precedent to the commencement of an action against a municipal defendant, and the failure to so comply warrants dismissal of the action" ( Ross v. County of Suffolk, 84 A.D.3d 775, 775–776, 922 N.Y.S.2d 784 ; see General Municipal Law § 50-h[5] ). "A party who has failed to comply with a demand for examination pursuant to General Municipal Law § 50-h is precluded from commencing an action against a municipality" ( Bernoudy v. County of Westchester, 40 A.D.3d 896, 897, 837 N.Y.S.2d 187 ; see Palmieri v. Town of Babylon, 139 A.D.3d 925, 926, 31 N.Y.S.3d 578 ; Boone v. City of New York, 92 A.D.3d 709, 710, 938 N.Y.S.2d 474 ; Ross v. County of Suffolk, 84 A.D.3d at 775–776, 922 N.Y.S.2d 784 ).

Here, as determined by the Supreme Court, the plaintiffs' noncompliance with General Municipal Law § 50-h warranted dismissal of the complaint (see Palmieri v. Town of Babylon, 139 A.D.3d at 926, 31 N.Y.S.3d 578 ; Boone v. City of of New York, 92 A.D.3d at 710, 938 N.Y.S.2d 474 ; Ross v. County of Suffolk, 84 A.D.3d at 776, 922 N.Y.S.2d 784 ; Kemp v. County of Suffolk, 61 A.D.3d 937, 938, 878 N.Y.S.2d 135 ).

" ‘[A] court cannot amend a statute by inserting words that are not there, nor will a court read into a statute a provision which the Legislature did not see fit to enact’ " ( Matter of Chemical Specialties Mfrs. Assn. v. Jorling, 85 N.Y.2d 382, 394, 626 N.Y.S.2d 1, 649 N.E.2d 1145, quoting McKinney's Cons Laws of NY, Book 1, Statutes § 363 at 525; see also McKinney's Cons Laws of NY, Book 1, Statutes § 94 at 190). Moreover, "[i]n the construction of statutes, each word or phrase in the enactment must be given its appropriate meaning" (McKinney's Cons Laws of NY, Book 1, Statutes § 230 at 387). General Municipal Law § 50-h(1), which is in derogation of the common law, is to be strictly construed (see McKinney's Cons Laws of NY, Book 1, Statutes § 301; Sandak v. Tuxedo Union School Dist. No. 3, 308 N.Y. 226, 230, 124 N.E.2d 295 ; Alouette Fashions v. Consolidated Edison Co. of N.Y., 119 A.D.2d at 486–487, 501 N.Y.S.2d 23 ). In strictly construing a statute, courts "will not go beyond the clearly expressed provisions of the act" ( Berger v. City of New York, 260 App.Div. 402, 404, 22 N.Y.S.2d 1006, affd 285 N.Y. 723, 34 N.E.2d 894 [internal quotation marks omitted] ).

Contrary to the plaintiffs' contention, upon applying a strict construction to the language of General Municipal Law § 50-h, the statute does not expressly permit nor give the absolute right to a claimant involved in the same alleged incident to be present at or to observe another claimant's oral examination. General Municipal Law § 50-h(1), provides, in relevant part, that the City "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 examination shall be upon oral questions ... and may include a physical examination of the claimant by a duly qualified physician." Immediately thereafter, this provision states, "[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." Given the manner in which the Legislature phrased the statute, the reference to "personal physician and such relative or other person as he or she may elect" pertains to a physical examination. We therefore disagree with our dissenting colleagues' analysis and conclusion that the phrase, "personal physician and such relative or other person as he or she may elect," applies in the context of an examination upon oral questions.

We also differ with our dissenting colleagues' determination that the defendants, in effect, constructively waived the 50-h hearings. "A waiver is the voluntary abandonment or relinquishment of a known right" ( Jefpaul Garage Corp. v. Presbyterian Hosp. in City of N.Y., 61 N.Y.2d 442, 446, 474 N.Y.S.2d 458, 462 N.E.2d 1176 ). The record does not demonstrate any waiver on the part of the defendants. Instead, the record shows that the plaintiffs refused to proceed with the 50-h hearings unless each was "in the room" while the other was testifying. The attorney for the defendants unequivocally stated that the defendants were "not waiving any right to any hearing."

Moreover, as recognized by our dissenting colleagues, CPLR provisions, including CPLR article 31 discovery rules, do not apply to the pre-commencement 50-h hearings at issue. Thus, the CPLR provisions relating to the conduct of depositions (cf. CPLR 3113 ) or trials are inapplicable.

Our dissenting colleagues assert that the defendants' argument that a sworn claimant will "tailor his or her testimony" to mirror the other claimant's testimony was not supported by the evidence, was based on conjecture, and was speculative. On this record, we will not find that the defendants' request for sequestration was based on pure conjecture, surmise, or speculation. As a practical matter, the rationale for the exclusion of a witness while another witness testifies is based upon an intrinsic, fundamental concept: human nature. On this point, we note that the exclusion or sequestration of witnesses is not a novel concept. It may date as far back as the 6th Century B.C. (see Daniel 13:1–65). "The process of sequestration consists merely in preventing one prospective witness from being taught by hearing another's testimony.... If the hearing of an opposing witness were permitted, the listening witness could thus ascertain the precise points of difference between their testimonies, and could shape his [or her] own testimony to better advantage for his [or her] cause" (6 John Henry Wigmore, Evidence § 1838 at 461 [James H. Chadbourn rev 1976] ). If a witness hears the testimony of others before he or she takes the stand, it is much easier for the witness to deliberately tailor his or her own story to that of other witnesses. Witnesses may also be influenced subconsciously (see 1 McCormick On Evid. § 50 [7th ed.] ).

The plaintiffs' remaining contention is without merit.

Accordingly, in light of the plaintiffs' failure to comply with General Municipal Law § 50-h, they were precluded from commencing the instant action, and thus, we agree with the Supreme Court's granting of the defendants' cross motion for...