Jones v New York City Housing Authority
Attorneys and Parties
Brief Summary
Personal injury and municipal/public housing litigation involving whether a claimant's failure to appear for a pre-suit oral examination barred suit against the New York City Housing Authority (NYCHA).
The Supreme Court, Kings County, granted NYCHA's motion to dismiss the complaint for failure to comply with General Municipal Law § 50-h [statute permitting a municipality to demand a pre-suit oral examination so it can promptly investigate a claim and evaluate settlement] and Public Housing Law § 157(2) [statute making compliance with such a demanded examination a condition precedent to suit against NYCHA].
The Appellate Division reversed the order dismissing the complaint and denied NYCHA's motion to dismiss.
Once the plaintiff's prior counsel advised that the scheduled examination could not proceed, NYCHA was required under General Municipal Law § 50-h(5) to reschedule the examination for the earliest possible date available. Because NYCHA did not set a new date or serve a new demand, the plaintiff's failure to appear before commencing suit did not warrant dismissal.
Background
Chanay Jones, a tenant in a building owned and managed by the New York City Housing Authority (NYCHA), alleged that she was injured on September 8, 2021, when she slipped on soapy water in her apartment kitchen that had leaked from exposed pipes. She served a notice of claim on October 5, 2021. NYCHA then demanded an oral examination and noticed it for February 1, 2022. On January 31, 2022, Jones's counsel informed NYCHA that counsel no longer represented her and that the examination could not proceed. NYCHA did not reschedule the examination. Jones later commenced this personal injury action in November 2022.
Lower Court Decision
The Supreme Court, Kings County, held that Jones failed to comply with the required pre-suit examination procedures and dismissed the complaint based on noncompliance with General Municipal Law § 50-h and Public Housing Law § 157(2).
Appellate Division Reversal
The Appellate Division held that, although compliance with a properly demanded General Municipal Law § 50-h examination is generally a condition precedent to suit, when such an examination is postponed indefinitely beyond 90 days and the municipality does not reschedule it, dismissal is not warranted for the claimant's nonappearance. Here, after being told the examination could not go forward, NYCHA neither set a new date nor served a subsequent demand. Accordingly, the dismissal order was reversed and NYCHA's motion was denied.
Legal Significance
The decision reinforces that municipalities and public housing authorities cannot rely on a claimant's missed or indefinitely postponed General Municipal Law § 50-h examination as a basis for dismissal if they fail to fulfill their own statutory obligation to reschedule the examination. It also shows that the Appellate Division may consider a pure question of law raised for the first time on appeal when it appears on the face of the record and could not have been avoided if raised earlier.
If a claimant's pre-suit municipal examination is postponed and the postponement extends beyond the statutory period, the municipality must promptly reschedule it; otherwise, it may lose the ability to dismiss the later lawsuit for nonappearance.