| Vartanian v City of New York |
| 2008 NY Slip Op 01532 [48 AD3d 673] |
| February 19, 2008 |
| Appellate Division, Second Department |
| Hilary Vartanian, Respondent, v City of New York,Defendant, and New York City Transit Authority, Appellant. |
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In an action to recover damages for personal injuries, the defendant New York City TransitAuthority appeals, as limited by its brief, from so much of an order of the Supreme Court,Queens County (Flug, J.), dated July 13, 2006, as denied its motion to dismiss the complaintinsofar as asserted against it on the ground that the plaintiff failed to appear for an oralexamination in accordance with Public Authorities Law § 1212 (5).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and themotion of the defendant New York City Transit Authority to dismiss the complaint insofar asasserted against it is granted.
Compliance with Public Authorities Law § 1212 (5) is a condition precedent to thecommencement of an action against the New York City Transit Authority (hereinafter theNYCTA) (see Lynch v New York CityTr. Auth., 12 AD3d 644, 646 [2004]; Knotts v City of New York, 6 AD3d 664, 665 [2004]; LoGuercio v New York City Tr. Auth., 31 AD2d 759, 760 [1969]). The plaintiff does notdispute the NYCTA's assertion that an oral examination pursuant to Public Authorities Law§ 1212 (5) was adjourned six times at her request, and there is no evidence that sherescheduled a new examination date prior to the commencement of this action (see Scalzo vCounty of Suffolk, 306 AD2d 397, 398 [2003]; Matter of Pelekanos v City of New York,264 AD2d 446, 447 [1999]; Best v City of New York, 97 AD2d 389 [1983], affd61 NY2d 847 [1984]). The plaintiff's failure to remain in contact with her attorney and herinability to attend the examination due to her new job did not constitute sufficient reasons orexceptional circumstances that would excuse her failure to appear for the repeatedly-adjournedexamination (see Misek-Falkoff vMetropolitan Tr. Auth. [MTA], 44 AD3d 629 [2007]; Bernoudy v County of Westchester, 40AD3d 896, 897 [2007]; Arcila v Incorporated Vil. of Freeport, 231 AD2d 660, 661[1996]). [*2]Accordingly, the NYCTA's motion to dismiss thecomplaint insofar as asserted against it should have been granted. Spolzino, J.P., Santucci, Dillonand Balkin, JJ., concur.