Opinion
2012-02-14
Sade BOONE, appellant, v. CITY OF NEW YORK, et al., defendants,New York City Housing Authority, respondent.
Sacco & Fillas, LLP, Whitestone, N.Y. (Lamont K. Rodgers of counsel), for appellant. Cullen and Dykman LLP, Brooklyn, N.Y. (Joseph Miller of counsel), for respondent.
Sacco & Fillas, LLP, Whitestone, N.Y. (Lamont K. Rodgers of counsel), for appellant. Cullen and Dykman LLP, Brooklyn, N.Y. (Joseph Miller of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Ash, J.), dated February 9, 2011, which granted the motion of the defendant New York City Housing Authority to dismiss the complaint insofar as asserted against it upon the plaintiff's failure to appear for an examination pursuant to General Municipal Law § 50–h and Public Housing Law § 157(2).
ORDERED that the order is affirmed, with costs.
Compliance with a demand for an oral examination pursuant to General Municipal Law § 50–h and Public Housing Law § 157(2) is a condition precedent to the commencement of an action against the defendant New York City Housing Authority (hereinafter the NYCHA), and the plaintiff's noncompliance therefore warranted dismissal of the complaint insofar as asserted against the NYCHA ( see Ross v. County of Suffolk, 84 A.D.3d 775, 776, 922 N.Y.S.2d 784; Steenbuck v. Sklarow, 63 A.D.3d 823, 824, 880 N.Y.S.2d 359; Kemp v. County of Suffolk, 61 A.D.3d 937, 938, 878 N.Y.S.2d 135; Bernoudy v. County of Westchester, 40 A.D.3d 896, 897, 837 N.Y.S.2d 187). After the plaintiff repeatedly rescheduled and failed to appear for the scheduled examination, her attorney agreed to reschedule a new examination. The record reveals that the plaintiff, thereafter, failed to take sufficient steps to reschedule the new examination. Accordingly, the plaintiff's subsequent commencement of the action against the NYCHA without rescheduling the examination warranted dismissal of the complaint insofar as asserted against that defendant ( see Vartanian v. City of New York, 48 A.D.3d 673, 674, 852 N.Y.S.2d 282; Bernoudy v. County of Westchester, 40 A.D.3d at 897, 837 N.Y.S.2d 187; Scalzo v. County of Suffolk, 306 A.D.2d 397, 398, 760 N.Y.S.2d 879; Best v. City of New York, 97 A.D.2d 389, 468 N.Y.S.2d 7, affd. 61 N.Y.2d 847, 473 N.Y.S.2d 975, 462 N.E.2d 152). Contrary to the plaintiff's contention, the papers submitted by the NYCHA in reply were properly considered by the Supreme Court, since they were relevant to refute the claims raised in the plaintiff's opposition ( see Lebar Constr. Corp. v. HRH Constr. Corp., 292 A.D.2d 506, 507, 739 N.Y.S.2d 294; Ticor Tit. Guar. Co. v. Bajraktari, 261 A.D.2d 156, 157, 689 N.Y.S.2d 95; Piraeus Jewelry v. Interested Underwriters at Lloyd's, 246 A.D.2d 386, 387, 667 N.Y.S.2d 721).