Summary
In Knotts v City of New York, 6 AD3d 664 (2d Dept 2004) and Inzerillo v Town of Huntington, 67 AD3d 736 [2d Dept 2009]), and other cases, the Second Department has adhered to the rule that a dismissal for failure to comply with the conditions precedent set forth in GML §§ 50-h or 50-i is not a dismissal on the merits, and is made without prejudice to a plaintiff's rights pursuant to CPLR 205(a).
Summary of this case from Licari v. Kings Cnty. Hosp. Ctr.Opinion
2003-06567.
Decided April 26, 2004.
Wallace D. Gossett, New York, N.Y. (Steven S. Efron of counsel), for appellants.
Kenneth J. Ready, Mineola, N.Y., for respondents.
Before: FRED T. SANTUCCI, J.P., NANCY E. SMITH, DANIEL F. LUCIANO, THOMAS A. ADAMS, JJ.
DECISION ORDER
In an action to recover damages for personal injuries, etc., the defendants New York City Transit Authority and Manhattan and Bronx Surface Transit Operating Authority appeal from an order of the Supreme Court, Kings County (Knipel, J.), dated May 27, 2003, which, in effect, denied their motion to dismiss the complaint insofar as asserted against them pursuant to Public Authorities Law § 1212(5), upon the condition that the plaintiffs appear for an oral examination on a date certain.
ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed insofar as asserted against the appellants.
The plaintiffs failed to appear for an oral examination pursuant to Public Authorities Law § 1212(5) at any time before the commencement of their action. Because compliance with Public Authorities Law § 1212(5) is a condition precedent to the commencement of an action against the appellants, the action should be dismissed insofar as asserted against the appellants, without prejudice to the plaintiffs' rights pursuant to CPLR 205(a) ( see Lo Guercio v. New York City Tr. Auth., 31 A.D.2d 759).
SANTUCCI, J.P., SMITH, LUCIANO and ADAMS, JJ., concur.