Colon v. Martin

• Decision Date: 07 May 2020
• Docket Number: No. 26,26
• Citation: 125 N.Y.S.3d 346,35 N.Y.3d 75,149 N.E.3d 39
• Parties: Wilfredo COLON, et al., Appellants, v. Willie MARTIN, Jr., et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

35 N.Y.3d 75

149 N.E.3d 39

125 N.Y.S.3d 346

Wilfredo COLON, et al., Appellants,

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

No. 26

Court of Appeals of New York.

May 7, 2020

OPINION OF THE COURT

FEINMAN, J.

General Municipal Law § 50–h requires a claimant to comply with a municipality's demand for a pre-action oral examination before commencing suit against the municipality. The novel statutory interpretation issue on this appeal is whether a claimant has the right to observe a coclaimant's section 50–h oral examination over the municipality's objection. We hold that section 50–h provides no such right.

Plaintiff Wilfredo Colon contends that, in January 2015, he was the owner and operator of a vehicle that was rear-ended by a pickup truck driven by defendant Willie Martin, Jr. and owned by Martin's employers, defendants New York City Department of Environmental Protection and the City of New York (the City). Plaintiff Ramona Cordero contends that she was a passenger in Colon's vehicle at the time of the accident. Plaintiffs, who were represented by the same attorney, served defendants with a joint notice of claim, contending that they suffered personal injuries and other damages as a result of defendants' negligence.

Defendants served separate "Notice[s] of 50–h Hearing," advising that, pursuant to General Municipal Law § 50–h, plaintiffs were "mandated by law to appear" and "be orally examined under oath" concerning their allegations before commencing an action. The notices contained unique claim numbers, assigned by defendants, and stated that the hearings would occur consecutively on a specified day.

Plaintiffs appeared for their section 50–h hearings in June 2015. However, their attorney refused to let the hearings proceed unless each plaintiff could be present while the other testified. Defendants rejected plaintiffs' demanded procedure, asserting that plaintiffs' refusal to appear at separate hearings violated the General Municipal Law and the City's policy. Defendants explained that they were "not waiving any right to any hearing" and warned plaintiffs that their position "risk[ed] ... potential dismissal." Plaintiffs countered that defendants failed to identify any authority for their reading of the statute other than the City's internal policy. Plaintiffs maintained that they were "not refusing to proceed," but would not go forward unless they could observe each other's testimony. The parties failed to reach an accord, and no section 50–h hearings ever occurred.

Plaintiffs commenced this action against defendants and later moved for summary judgment on the issue of liability. Defendants cross-moved for summary judgment based on plaintiffs' failure to submit to pre-action section 50–h hearings. Plaintiffs opposed defendants' cross motion, arguing that defendants constructively waived their right to the hearings by refusing to conduct them simultaneously. Plaintiffs did not seek, in the alternative, an opportunity to submit to separate hearings. Supreme Court, among other things, granted defendants' cross motion and dismissed the action.

The Appellate Division affirmed Supreme Court's order insofar as appealed from, with two Justices dissenting (see 170 A.D.3d 1109, 1109, 97 N.Y.S.3d 311 [2d Dept. 2019] ). The Court concluded that General Municipal Law § 50–h "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" ( id. at 1111, 97 N.Y.S.3d 311 ). Therefore, because plaintiffs failed "to comply with" the statute, "they were precluded from commencing the instant action" ( id. at 1112, 97 N.Y.S.3d 311 ). Plaintiffs appealed to this Court as of right pursuant to CPLR 5601(a) on dissent grounds. We affirm.

This Court's "well-established rules of statutory construction direct" that the analysis begins "with the language of the statute" ( People v. Francis, 30 N.Y.3d 737, 740, 71 N.Y.S.3d 394, 94 N.E.3d 882 [2018] [internal quotation marks and citation omitted] ). This is because the "primary consideration is to ascertain the legislature's intent, of which the text itself is generally the best evidence" ( id. [internal quotation marks and citation omitted]; see Matter of Walsh v. New York State Comptroller , 34 N.Y.3d 520, 522, 122 N.Y.S.3d 209, 210, 144 N.E.3d 953, 954, 2019 N.Y. Slip Op. 08518, *1, [2019] ). "[A] court should construe unambiguous language to give effect to its plain meaning" ( Matter of Walsh, 2019 N.Y. Slip Op. 08518, *1, 34 N.Y.3d 520, 522, 122 N.Y.S.3d 209, 210, 144 N.E.3d 953, 954 [internal quotation marks and citation omitted] ). "Further, a statute must be construed as a whole and ... its various sections must be considered together and with reference to each other" ( id. [internal quotation marks and citation omitted] ). "[T]he circumstances surrounding the statute's passage" are a useful aid in understanding its meaning ( Riley v. County of Broome, 95 N.Y.2d 455, 464, 719 N.Y.S.2d 623, 742 N.E.2d 98 [2000] [internal quotation marks and citation omitted] ).

"The maxim expressio unius est exclusio alterius " applies "in the construction of the statutes, so that where a law expressly describes a particular act, thing or person to which it shall apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded" (McKinney's Cons Laws of NY, Book 1, Statutes § 240; see Town of Aurora v. Village of E. Aurora, 32 N.Y.3d 366, 372–373, 91 N.Y.S.3d 773, 116 N.E.3d 64 [2018] ). In other words, the doctrine is an "interpretive maxim that the inclusion of a particular thing in a statute implies an intent to exclude other things not included" ( Cruz v. TD Bank, N.A., 22 N.Y.3d 61, 72, 979 N.Y.S.2d 257, 2 N.E.3d 221 [2013] ). The maxim "is typically used to limit the expansion of a right or exception—not as a basis for recognizing unexpressed rights by negative implication" ( id. ).

Under the "last antecedent rule of statutory construction ..., relative and qualifying words or clauses in a statute are to be applied to the words or phrases immediately preceding, and are not to be construed as extending to others more remote" ( Matter of T–Mobile Northeast, LLC v. DeBellis, 32 N.Y.3d 594, 608, 94 N.Y.S.3d 211, 118 N.E.3d 873 [2018], rearg. denied 32 N.Y.3d 1197, 95 N.Y.S.3d 150, 119 N.E.3d 790 [2019] [internal quotation marks, brackets, and citation omitted]; see McKinney's Cons Laws of NY, Book 1, Statutes § 254). "Thus, the word ‘such,’ when used in a statute, must, in order to be intelligible, refer to some antecedent, and will generally be construed to refer to the last antecedent in the context, unless some compelling reason appears why it should not be so construed" (McKinney's Cons Laws of NY, Book 1, Statutes § 254, Comment at 418 [1971 ed] ).

General Municipal Law § 50–h (1) states:

"Wherever a notice of claim is filed against a city ... 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. If 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."

Section 50–h (3) provides: "In any examination required pursuant to the provisions of this section the claimant shall have the right to be represented by counsel." Section 50–h (5) states: "Where a demand for examination has been served ... no action shall be commenced against the city ... against which the claim is made unless the claimant has duly complied with such demand for examination."

As General Municipal Law § 50–h (5) makes clear on its face, compliance with a municipality's demand for a section 50–h examination is a condition precedent to commencing an action against that municipality (see Alouette Fashions v. Consolidated Edison Co. of N.Y., 119 A.D.2d 481, 484–485, 501 N.Y.S.2d 23 [1st Dept. 1986], affd for the reasons stated in App.Div. mem 69 N.Y.2d 787, 513 N.Y.S.2d 114, 505 N.E.2d 624 [1987] ). A claimant's failure to comply with such a demand generally warrants dismissal of the action (see Davidson v. Bronx Mun. Hosp., 64 N.Y.2d 59, 62, 484 N.Y.S.2d 533, 473 N.E.2d 761 [1984] ). Requiring claimants to comply with section 50–h before commencing an action augments the statute's purpose, which "is to afford the city an opportunity to early investigate the circumstances surrounding the accident and to explore the merits of the claim, while information is readily available, with a view towards settlement" ( Alouette Fashions, 119 A.D.2d at 487, 501 N.Y.S.2d 23 ; see Davidson, 64 N.Y.2d at 62, 484 N.Y.S.2d 533, 473 N.E.2d 761 ).

Plaintiffs essentially argue that General Municipal Law § 50–h (1) permits a claimant to have their "personal physician" or "such relative or other person" present at an oral examination, and that a coclaimant qualifies as an "other person" under the statute. We disagree. Section 50–h (1) states that the "examination shall be upon oral questions ... and may include a physical examination." It goes on to state that the claimant "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" (emphasis added). Pursuant to the last antecedent rule of statutory construction, the phrase "such examination" in section 50–h (1) refers to the "physical examination," the last examination in the list of examinations contemplated by that provision. It does not apply to the more remote examination upon oral questions. Plaintiffs fail to identify any compelling reason to abandon this established rule of construction in this case.

Section 50–h (1)'s legislative history corroborates this...