| Colon v Martin |
| 2019 NY Slip Op 02312 [170 AD3d 1109] |
| March 27, 2019 |
| Appellate Division, Second Department |
[*1]
| Wilfredo Colon et al., Appellants, v Willie Martin, Jr.,et al., Respondents. |
Terilli & Tintle, PLLC (Sweetbaum & Sweetbaum, Lake Success, NY [MarshallD. Sweetbaum], of counsel), for appellants.
Zachary W. Carter, Corporation Counsel, New York, NY (Susan P. Greenberg and JeremyW. Shweder of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiffs appeal from an order ofthe 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 dismissingthe 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 IslandExpressway, in Richmond County, on January 14, 2015. The plaintiff Wilfredo Colon wasoperating a vehicle in which the plaintiff Ramona Cordero was a passenger, when that vehiclewas allegedly struck in the rear by a vehicle operated by the defendant Willie Martin, Jr., andowned by the defendants New York City Department of Environmental Protection and the Cityof New York.
On February 12, 2015, the plaintiffs filed a notice of claim against the defendants. On March23, 2015, the defendants sent the plaintiffs' counsel two notices, one as to each plaintiff, advisingthat each plaintiff was "mandated by law" to appear and be orally examined under oath athearings pursuant to General Municipal Law § 50-h (hereinafter the 50-hhearings).
On June 25, 2015, the plaintiffs appeared for the 50-h hearings. The plaintiffs' counsel wouldnot proceed unless each plaintiff was permitted to be present while the other testified. Thedefendants' counsel indicated that it was the defendants' policy to conduct individual hearings foreach claimant. The defendants' counsel added that 50-h hearings were conditions precedent to alawsuit and the defendants were "not waiving any right to any hearing." The plaintiffs' counselcountered that each plaintiff had "the absolute right" to sit in on the other's testimony. Theplaintiffs' counsel asserted that the plaintiffs were "ready, willing and able" to proceed and thatthey were not "refusing to proceed." The plaintiffs' counsel added, "we just want the hearing heldwith both [plaintiffs] in the room and the City is refusing to do so." It is undisputed that the 50-hhearings were not conducted.
Nevertheless, on or about August 25, 2015, the plaintiffs commenced the instant action. Inthe complaint, the plaintiffs alleged that the defendants "constructively waived" the 50-hhearings. Thereafter, as relevant herein, the defendants cross-moved for summary judgmentdismissing the complaint on the ground that the plaintiffs failed to comply with the 50-hearingrequirement. The Supreme Court, inter alia, granted the defendants' cross motion.
The purpose of General Municipal Law § 50-h is to enable a municipality tomake a prompt investigation of the circumstances of a claim by examining the claimant about thefacts of the claim (see Nasca v Town ofBrookhaven, 10 AD3d 415, 416 [2004]). The oral examination of a claimant pursuant toGeneral Municipal Law § 50-h serves to supplement the notice of claim andprovides an investigatory tool to the municipality, with a view toward settlement (see Di Pompo v City of Beacon PoliceDept., 153 AD3d 597, 598 [2017]; Alouette Fashions v Consolidated Edison Co. ofN.Y., 119 AD2d 481, 487 [1986], affd 69 NY2d 787 [1987]). "Compliance with ademand for a General Municipal Law § 50-h examination is a condition precedentto the commencement of an action against a municipal defendant, and the failure to so complywarrants dismissal of the action" (Ross vCounty of Suffolk, 84 AD3d 775, 775-776 [2011]; see General Municipal Law§ 50-h [5]). "A party who has failed to comply with a demand for examinationpursuant to General Municipal Law § 50-h is precluded from commencing an actionagainst a municipality" (Bernoudy vCounty of Westchester, 40 AD3d 896, 897 [2007]; see Palmieri v Town of Babylon, 139 AD3d 925, 926 [2016]; Boone v City of New York, 92 AD3d709, 710 [2012]; Ross v County of Suffolk, 84 AD3d at 775-776).
Here, as determined by the Supreme Court, the plaintiffs' noncompliance with GeneralMunicipal Law § 50-h warranted dismissal of the complaint (see Palmieri vTown of Babylon, 139 AD3d at 926; Boone v City of New York, 92 AD3d at 710;Ross v County of Suffolk, 84 AD3d at 776; Kemp v County of Suffolk, 61 AD3d 937, 938 [2009]).
" '[A] court cannot amend a statute by inserting words that are not there, nor will acourt read into a statute a provision which the Legislature did not see fit to enact' "(Matter of Chemical Specialties Mfrs. Assn. v Jorling, 85 NY2d 382, 394 [1995], quotingMcKinney's Cons Laws of NY, Book 1, Statutes § 363 at 525; see alsoMcKinney's Cons Laws of NY, Book 1, Statutes § 94 at 190). Moreover, "[i]n theconstruction of statutes, each word or phrase in the enactment must be given its appropriatemeaning" (McKinney's Cons Laws of NY, Book 1, Statutes § 230 at 387). GeneralMunicipal Law § 50-h (1), which is in derogation of the common law, is to bestrictly construed (see McKinney's Cons Laws of NY, Book 1, Statutes§ 301; Sandak v Tuxedo Union School Dist. No. 3, 308 NY 226, 230[1954]; Alouette Fashions v Consolidated Edison Co. of N.Y., 119 AD2d at 486-487). Instrictly construing a statute, courts "will not go beyond the clearly expressed provisions of theact" (Berger v City of New York, 260 App Div 402, 404 [1940], affd 285 NY 723[1941] [internal quotation marks omitted]).
Contrary to the plaintiffs' contention, upon applying a strict construction to the language ofGeneral Municipal Law § 50-h, the statute does not expressly permit nor give theabsolute right to a claimant involved in the same alleged incident to be present at or to observeanother 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 claimantrelative to the occurrence and extent of the injuries or damages for which claim is made, whichexamination shall be upon oral questions . . . and may include a physicalexamination of the claimant by a duly qualified physician." Immediately thereafter, this provisionstates, "[i]f the party to be examined desires, he or she is entitled to have such examination in thepresence of his or her own personal physician and such relative or other person as he or she mayelect" (id.). Given the manner in which the Legislature phrased the statute, the referenceto "personal physician and such relative or other person as he or she may elect" pertains to aphysical examination. We therefore disagree with our dissenting colleagues' analysis andconclusion that the phrase, "personal physician and such relative or other person as he or she mayelect," 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 orrelinquishment of a known right" (Jefpaul Garage Corp. v Presbyterian Hosp. in City ofN.Y., 61 NY2d 442, 446 [1984]). The record does not demonstrate any waiver on the part ofthe defendants. Instead, the record shows that the plaintiffs refused to proceed with the 50-hhearings unless each was "in the room" while the other was testifying. The attorney for thedefendants unequivocally stated that the defendants were "not waiving any right to anyhearing."
Moreover, as recognized by our dissenting colleagues, CPLR provisions, including CPLRarticle 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 areinapplicable.
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 theevidence, was based on conjecture, and was speculative. On this record, we will not find that thedefendants' request for sequestration was based on pure conjecture, surmise, or speculation. As apractical matter, the rationale for the exclusion of a witness while another witness testifies isbased upon an intrinsic, fundamental concept: human nature. On this point, we note that theexclusion or sequestration of witnesses is not a novel concept. It may date as far back as the sixthcentury B.C. (see Daniel 13:1-65). "The process of sequestration consists merely inpreventing one prospective witness from being taught by hearing another'stestimony. . . . If the hearing of an opposing witness were permitted, thelistening 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 JohnHenry Wigmore, Evidence § 1838 at 461 [James H. Chadbourn rev 1976]). If awitness hears the testimony of others before he or she takes the stand, it is much easier for thewitness to deliberately tailor his or her own story to that of other witnesses. Witnesses may alsobe influenced subconsciously (see 1 McCormick on Evidence § 50 [7thed]).
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, weagree with the Supreme Court's granting of the defendants' cross motion for summary judgmentdismissing the complaint. Rivera, J.P., Dillon, and Roman, JJ., concur.
Duffy, J., dissents, and votes to reverse the order insofar as appealed from, on the law, anddeny the defendants' cross motion for summary judgment dismissing the complaint, with thefollowing memorandum, in which Connolly, J., concurs: In this case, the plaintiffs timelyappeared at the office of the defendants' counsel for scheduled General Municipal Law§ 50-h hearings. The plaintiffs' separate hearings were set to occur one after theother. Nonetheless, counsel for the defendants refused to proceed with either examination whileboth plaintiffs remained present during the examinations; the defendants' counsel contended thatNew York City's internal policy required him to conduct individual hearings without the otherplaintiff present and that General Municipal Law § 50-h authorized the City toimpose this requirement. Counsel for the plaintiffs disputed the defendants' contention thatGeneral Municipal Law § 50-h authorized the defendants to exclude certainindividuals from the examination, contending that, in effect, since the plaintiffs were ready toproceed with the hearings, the defendants had waived this condition precedent to thecommencement of an action. Thereafter, the Supreme Court granted the defendants' cross motionfor summary judgment dismissing the complaint on the ground that the plaintiffs failed tocomply with General Municipal Law § 50-h, which is a condition precedent tocommencing the action.
When interpreting a statute, courts should attempt to effectuate the intent of the Legislature(see Yatauro v Mangano, 17 NY3d420, 426 [2011]; Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577,583 [1998]). "As the clearest indicator of legislative intent is the statutory text, the starting pointin any case of interpretation must always be the language itself" (Majewski vBroadalbin-Perth Cent. School Dist., 91 NY2d at 583; see Yatauro v Mangano, 17NY3d at 426). All parts of a statute must be read and construed together (see People v MobilOil Corp., 48 NY2d 192, 199 [1979]; Matter of Notre Dame Leasing v Rosario, 308AD2d 164, 171 [2003], affd 2 NY3d 459 [2004]; McKinney's Cons Laws of NY, Book 1,Statutes § 97). To this end, " '[e]very part of a statute must be givenmeaning and effect . . . and the various parts of a statute must be construed so as toharmonize with one another' " (Matter of Notre Dame Leasing v Rosario, 308AD2d at 171-172, quoting Heard v Cuomo, 80 NY2d 684, 689 [1993]) and interpreted asthey are written "according to the ordinary meaning of their language" (Riegert Apts. Corp. vPlanning Bd. of Town of Clarkstown, 57 NY2d 206, 209 [1982]).
Here, a plain reading of General Municipal Law § 50-h establishes that it doesnot contain a provision authorizing the defendants to exclude individuals from the 50-hexamination. Specifically, General Municipal Law § 50-h provides, in pertinentpart:
"1. Wherever a notice of claim is filed against a city . . . [it] shall have the rightto demand an examination of the claimant . . . which examinationshall be upon oral questions . . . and may include a physical examination ofthe claimant by a duly qualified physician. If the party to be examined desires, he or she isentitled to have such examination in the presence of his or her own personal physician and suchrelative or other person as he or she may elect. . . .
"3. In any examination . . . the claimant shall have the right to be represented bycounsel. The examination shall be conducted upon oath or affirmation. . . . Thetestimony so taken, together with the report of the examining physician where a physicalexamination is required, shall constitute the record of the examination" (emphasisadded).
Although the notice of claim provisions of the General Municipal Law were enacted toenable municipalities to pass upon the merits of a claim before the initiation of litigation in orderto forestall unnecessary lawsuits (seeNasca v Town of Brookhaven, 10 AD3d 415, 416 [2004]), and to make a promptinvestigation of the circumstances of a claim by examining the claimant about the facts of theclaim (see id. at 416), the provisions of General Municipal Law § 50-h havebeen and should be strictly construed so as to limit the City's authority to the statute's expressterms (see Alouette Fashions v Consolidated Edison Co. of N.Y., 119 AD2d 481,486-487 [1986], affd 69 NY2d 787 [1987]; see also Zash v County of Nassau,171 AD2d 743, 743 [1991]). For example, in Alouette Fashions v Consolidated Edison Co. ofN.Y. (119 AD2d at 486-487), the Appellate Division, First Department, held that themunicipal defendants' broad and extensive requests for documentation included in the demandsfor examination of the claimants were improper. Specifically, the Court found that GeneralMunicipal Law § 50-h, which provides that such "examination shall be upon oralquestions unless the parties otherwise stipulate and may include a physical examination of theclaimant," limits disclosure (see Alouette Fashions v Consolidated Edison Co. of N.Y.,119 AD2d at 486). The Court further noted that General Municipal Law § 50-h hasbeen strictly construed to disallow to municipal defendants the type of broad discovery permittedby the discovery provisions of the CPLR, noting that those CPLR provisions do not pertain topre-action proceedings (see Alouette Fashions v Consolidated Edison Co. of N.Y., 119AD2d at 487). Indeed, inasmuch as the 50-h examination requirements are " 'inderogation of [a] plaintiff's common-law rights,' the statute creating such a requirement should bestrictly construed in the plaintiff's favor" (Goodwin v Pretorius, 105 AD3d 207, 216 [2013], quotingSandak v Tuxedo Union School Dist. No. 3, 308 NY 226, 230 [1954]; see generallyAlouette Fashions v Consolidated Edison Co. of N.Y., 119 AD2d at 487).
Although we agree with our colleagues in the majority that principles of strict constructionshould be applied to ascertain whether General Municipal Law § 50-h permits adefendant to exclude a co-claimant from a claimant's 50-h hearings, our colleagues in themajority construe the statute in favor of the municipal defendants rather than the plaintiff andascribe a meaning to the word "examination" in the statute which is not supported by the text ofthe statute. The plain language of General Municipal Law § 50-h refers to oneexamination of the plaintiff by the defendant and permits the plaintiff the option ofchoosing who is present at this examination, not the defendant. Specifically, the statute expresslyprovides that a claimant has a right to be represented by counsel (see General MunicipalLaw § 50-h [3]). The statute also provides that a claimant can have "suchexamination" in the presence of "such relative or other person as he or she may elect" (GeneralMunicipal Law § 50-h [1]). Although our colleagues in the majority contend thatthis language pertains only to the physical examination that is permitted by the statute, the statutedoes not delineate between different types of exams. Instead, the statute speaks about thedefendants' entitlement to conduct "an examination," and provides that such examination mayinclude a physical examination. Indeed, the express language of the statute dictates theconclusion that the physical examination it refers to is simply one part of the overallexamination. The statute provides that the "testimony so taken, together with the report of theexamining physician where a physical examination is required, shall constitute the record of theexamination" (General Municipal Law § 50-h [3]). Moreover, in their discussion ofthe application of strict construction to the language of General Municipal Law§ 50-h, our colleagues in the majority focus on the plaintiffs' contentions about thestatute but do not address the defendants' contention that General Municipal Law§ 50-h authorized the City to impose an internal policy of New York City toconduct individual hearings without the other person present. The statute neither expresslypermits nor authorizes that which the defendants contend. Since the statute expressly specifiesthat other persons, of the claimant's choosing, can be present at "such examination," the de factoadoption by our colleagues in the majority of the defendants' position that General MunicipalLaw § 50-h authorizes the defendants to exclude one claimant from the examinationof another claimant ignores the statute's plain language and the precept that construction of thestatute should be strictly construed in the plaintiff's favor (see Sandak v Tuxedo UnionSchool Dist. No. 3, 308 NY at 230; Goodwin v Pretorius, 105 AD3d at 216) and notbe given a "strained interpretation" (Zash v County of Nassau, 171 AD2d at 743).
The defendants' contention that the purposes of General Municipal Law § 50-hwould be undermined if this Court were to find that the statute does not authorize the City toexclude one claimant from another claimant's 50-h examination is speculative. As an initialmatter, if the Legislature had intended the statute to authorize a defendant to exclude aco-claimant from the 50-h examination of a claimant, it could have clearly and explicitly createdsuch a provision when it enacted the statute (see e.g. Sandak v Tuxedo Union School Dist.No. 3, 308 NY at 230).
Second, the defendants' conjecture that, if allowed to be present at the examination of afellow claimant, a sworn claimant would tailor his or her testimony to mirror the other claimant'stestimony, is unsupported. No evidence has been submitted to validate this surmise. Despite thecommentary of our colleagues in the majority that tailoring testimony is simply part of humannature, there are cases wherein this Court has decided appeals pertaining to 50-h issues in which,as a matter of course, co-claimants in those cases were present at each other's 50-h examination(see e.g. Nasca v Town of Brookhaven, 10 AD3d at 416; Rupp v City of Port Jervis, 10 AD3d391, 393 [2004]). No concerns about tailored testimony appear in our decisions in thosecases. Indeed, the defendants cite to nothing in the legislative history of General Municipal Law§ 50-h that would support the defendants' conjecture that the statute—whichthe New York State Legislature enacted to allow municipalities to investigate and evaluateclaims to avoid litigation (see Nasca v Town of Brookhaven, 10 AD3d at 416;Alouette Fashions v Consolidated Edison Co. of N.Y., 119 AD2d at 487)—also isintended to prevent potential dishonesty of a claimant at a 50-h examination. Since the legislativehistory of General Municipal Law § 50-h does not expressly address this issue oneway or another, the discovery rules adopted by the legislature as set forth in the CPLR areinstructive as to legislative intent. Notwithstanding the inapplicability of the CPLR discoveryrules at the General Municipal Law § 50-h pre-action phase of the proceeding, it issignificant to note that the CPLR contains no prohibition disallowing co-plaintiffs fromappearing at depositions or at the trial testimony of each other during the action (see e.g.CPLR 3113; Carlisle v County of Nassau, 64 AD2d 15, 18 [1978]).
Accordingly, contrary to the determination of our colleagues in the majority, we find thatneither the plain language of General Municipal Law § 50-h nor the legislativeintent of that statute authorizes the defendants to exclude one claimant from the 50-hexamination of his or her co-claimant.
Although compliance with a demand for an examination pursuant to General Municipal Law§ 50-h is a condition precedent to the commencement of an action against amunicipal defendant (see General Municipal Law § 50-h [5]; Palmieri v Town of Babylon, 139AD3d 925, 926 [2016]; Ross vCounty of Suffolk, 84 AD3d 775, 775-776 [2011]), here, the defendants' refusal tocommence the examinations of either plaintiff while the other was present, in effect, constituted aconstructive waiver of the right to the examination (see generally Ambroziak v County ofErie, 177 AD2d 974, 974 [1991]).
Accordingly, the Supreme Court erred in granting the defendants' cross motion for summaryjudgment dismissing the complaint on the ground that the plaintiffs had not complied with theGeneral Municipal Law § 50-h condition precedent to commencing the action.