Opinion
April 6, 1998
Appeal from the Supreme Court, Queens County (LeVine, J.).
Ordered that the appeal from the order dated July 12, 1996, is dismissed as that order was superseded by the order dated March 12, 1997, made in effect, upon renewal; and it is further,
Ordered that the order dated March 12, 1997, is affirmed; and it is further,
Ordered that the respondents are awarded one bill of costs.
The motion for summary judgment was properly denied since there is a factual dispute as to whether the plaintiffs Joseph Messena and Marie Madeline Jocelyn complied with a condition precedent to bringing the action pursuant to Public Authorities Law § 1212 (5) (compare, McCormack v. Port Washington Union Free School Dist., 214 A.D.2d 546, with Bailey v. New York City Health Hosps. Corp., 191 A.D.2d 606, and Lo Guercio v. New York City Tr. Auth., 31 A.D.2d 759; see generally, Matter of Suffolk County Dept. of Social Servs. [Michael V.] v. James M., 83 N.Y.2d 178; Alvarez v. Prospect Hosp., 68 N.Y.2d 320).
O'Brien, J.P., Thompson, Santucci and McGinity, JJ., concur.