Plaintiff's unexplained conduct thwarts the 50-h hearing process: Claim against City and Housing Authority conditionally dismissed

Bianca Pichardo v. The City of New York and New York City Housing Authority, Index No. 157494/2014 (Sup.Ct. N.Y.Cty. 2015)

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Finding himself "at a loss to find any justification in plaintiff's attorney's action", Justice Frank P. Nervo conditionally granted a motion to dismiss a personal injury action for conduct that "thwarted the 50-h hearing process."

Litigation in New York courts is never a tea party. Still, the Court in this case decided it had really had enough. First, plaintiff failed to appear for a required physical examination. When she appeared for the mandatory 50-h hearing, she refused, at her attorneys direction, to mark photographs showing the accident site. Coincidentally, these photographs were exchanged by plaintiff's counsel and were attached to the Notice of Claim.

To deter further misconduct, the Court set two conditions for plaintiff to comply with: answering questions at a 50-h hearing at a time and place chosen by the defendant, and payment by plaintiff's attorney of $1,000 to the defendant, out of the attorney's own funds. The defendant may move for a final order of dismissal if either or both of the conditions are not met.

The statute at issue, New York General Municipal Law section 50-h, permits a municipality, when a notice of claim is filed against it, to demand a hearing "relative to the occurrence and extent of the injuries or damages for which the claim is made". Impeding this process is grounds for dismissal because an action may not be commenced until the plaintiff has complied with the municipality's demand for this hearing. Failing to comply is not only discourteous, but it also circumvents a very specific statute intended to "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, Inc. v. Consolidated Edison Co., 119 A.D.2d 481 (1st Dep't 1986).

AGF&J Associate Bryan Goldstein made the winning motion on behalf of the New York City Housing Authority.