Opinion
May 15, 1995
Appeal from the Supreme Court, Queens County (Lisa, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly denied the defendants' motion to dismiss the complaint (see generally, Alouette Fashions v Consolidated Edison Co., 119 A.D.2d 481, 484-485, affd 69 N.Y.2d 787). General Municipal Law § 50-h (2) provides, "No demand for examination shall be effective against the claimant for any purpose unless it shall be served as provided in this subdivision within ninety days from the date of filing of the notice of claim." The defendants first served a proper demand for a physical examination of the plaintiff pursuant to General Municipal Law § 50-h (1) and (2) and Public Housing Law § 157 (2) on January 28, 1993, which is more than 90 days from the date of the filing of the notice of claim (see, General Municipal Law § 50-h). Accordingly, the plaintiff was not precluded by General Municipal Law § 50-h (5) from commencing this action before appearing for the physical examination. Balletta, J.P., O'Brien, Thompson and Altman, JJ., concur.