Opinion
101253/05.
Decided January 3, 2008.
Pursuant to CPLR 3211, defendant New York City Health and Hospitals Corporation ("HHC") moves to dismiss the complaint of plaintiff Gregoria Perez ("Ms. Perez") as Administrator of the Estate of Daniel Perez ("Mr. Perez") for failure to comply with section 50-h of the General Municipal Law. Affirmation in Support ("Supp."), at ¶ 2. Co-defendant City of New York (the "City") cross-moves for the same relief and additionally seeks dismissal on the ground that it is an improper party.
Ms. Perez concedes that dismissal is warranted as against the City but opposes HHC's motion. See, Affirmation in Opposition ("Opp."), at ¶ 2.
Background
On March 13, 2003, Ms. Perez served a notice of claim on HHC, setting forth that "medical malpractice [was committed] by Bellevue Hospital * * * and its doctors, employees and representatives" in connection with care and treatment rendered to Mr. Perez while hospitalized between January 18 and January 31, 2003. Supp., Ex. A.
A second notice of claim, asserting identical facts, was served on February 8, 2005. Supp., Ex. B.
Pursuant to General Municipal Law § 50-h, which authorizes an examination of the claimant "relative to the occurrence and extent of the injuries or damages for which claim is made," the Office of the Comptroller ("Comptroller") scheduled a hearing for May 12, 2003. Supp., at ¶ 6. The hearing notice stated that an adjournment could be sought by phone, writing or fax and that " any additional adjournment must be requested, in writing or by facsimile, to the Comptroller's Office [and] that it [would] be granted for good cause only and only if the hearing can be held prior to claimant's commencement of an action." Supp., Ex. C (emphasis added).
At Ms. Perez's attorney's request, which was made to the Comptroller by fax, the hearing was adjourned to August 4, 2003. The Comptroller sent counsel a letter confirming:
"that the hearing * * * has been adjourned, at your request, and has been rescheduled * * *."
Supp., at ¶ 6 and Ex. C.
On August 1, 2003, due to Ms. Perez's attorney's actual engagement in New York County Criminal Court, a second adjournment was requested from the Comptroller. Ms. Perez's counsel asked for a new hearing date on or after September 15, 2003. Supp., Ex. C. The matter was put over to October 14, 2003 and a letter reflecting the adjournment was mailed to plaintiff's counsel. Id.
Four days before the repeatedly-adjourned hearing date, Ms. Perez's counsel requested yet another postponement, this time apparently directing his inquiry to Schiavetti, Corgan, Soscia, DiEdwards and Nicholson, LLP ("Schiavetti, Corgan"), the law firm where the 50-h hearing was to be conducted. Id. A representative of Schiavetti, Corgan wrote the Comptroller:
"Please be advised that Claimant's attorney has requested an adjournment * * *.
"Kindly contact our office if you wish to schedule a new hearing in lieu of [October 14, 2003]."
Supp., Ex. C.
This time, December 10, 2003 was selected as the new hearing date. The day before the hearing — on December 9, 2003 — Ms. Perez's attorney asked for an adjournment from Schiavetti, Corgan once again. An employee of the firm sent the identical letter to the Comptroller and a new hearing was scheduled for February 11, 2004. Supp., at ¶ 6.
On February 10, 2004, a day before the hearing, counsel asked Schiavetti, Corgan for another — fifth — adjournment of the hearing. Schiavetti, Corgan again sent the identical letter to the Comptroller.
In late February, Ms. Perez's attorney contacted the Comptroller in an attempt to schedule a late-March 2004 hearing date. Opp., Ex. B.
Meanwhile, by letter dated February 23, 2004, the Comptroller confirmed the adjournment and set forth that the hearing would take place on April 13, 2004 — approximately 11 months after the initial hearing was scheduled. Supp., Ex. C. "A staff member wrote on the bottom of the letter [authorizing this fifth adjournment] Final-This is it" before it was mailed, intending to put the party on notice that this was the last adjournment." Reply Affirmation ("Reply"), Affirmation of Mary Bodner ("Bodner Aff."), at ¶ 4. (The notation does not appear on Ms. Perez's counsel's copy of the letter, which is attached to the opposition papers. Opp., Ex. C.)
On April 12, 2004, just as it had on earlier occasions when Ms. Perez's attorney asked for an adjournment, Schiavetti, Corgan advised the Comptroller that "Claimant [Ms. Perez's] attorney has requested an adjournment." The firm stated, just as it had when prior adjournments were sought, "[k]indly contact our office if you wish to schedule a new hearing in lieu of [April 13, 2004]." Supp., Ex. C (emphasis added).
According to HHC, "the Comptroller's Office declined to grant another adjournment and reiterated that April 13, 2004 was the final date." Supp., at ¶ 6. There is no affirmation or affidavit by the individual who "reiterated" the finality. HHC points out that "Claimant [Ms. Perez] did not appear for testimony on April 13, 2004." Supp., at ¶ 6.
Ms. Perez's counsel maintains that he was told by some unnamed individual at the Comptroller's Office that the hearing would be adjourned beyond April 13, 2004, but unlike every single other time an adjournment was granted, he was never sent a notice of any further hearing date. Opp., at ¶ 8. He affirms that after April 13th he called the Comptroller to inquire about the adjournment "and at that time was told that it would not be rescheduled." Id., at ¶ 9. He further maintains:
"[Ms. Perez] wished to appear for the hearing and, * * * it was the Comptroller's Office [that] unilaterally chose [not to] reschedule it after it had agreed to reschedule it.
"Your affirmant relied upon the representations from the Comptroller's Office that the hearing would be rescheduled. Had your affirmant been told, in the discussion prior to [April 13, 2004] that the hearing would not be rescheduled, your affirmant would have made arrangements to have another attorney appear at the hearing with [Ms. Perez]."
Opp., at ¶¶ 10-11.
On January 27, 2005 — almost three years ago — Ms. Perez commenced this action. She never filed a notice of medical malpractice or purchased a request for judicial intervention; thus, no disclosure conferences have taken place and the action has been dormant.
More than two and a half years later, in July 2007, HHC made this motion, urging that Ms. Perez failed to comply with General Municipal Law § 50-h before commencing this action and that accordingly the case must be dismissed. Supp., at ¶ 9.
Ms. Perez counters that she never failed to appear "as all scheduled hearing dates had been mutually agreed to be adjourned." Opp., at ¶ 4. She points out that when a party fails to appear for a 50-h hearing, the Comptroller bills the individual. No bill was ever sent here. She explains that the Comptroller generally sets the dates for hearings without checking the availability of the party and counsel; thus, conflicts are inevitable. She believed that the hearing had been adjourned as counsel "reasonably relied upon * * * affirmative representations that the hearing would be rescheduled." Id., at ¶ 13. Ms. Perez contends that she is now being prejudiced by misrepresentations and that HHC "should be viewed as having waived the hearing." Id., at ¶ 14. She "remains ready to attend the hearing" on a mutually agreed upon date. Id., at ¶ 16.
On reply, HHC argues that Ms. Perez's attorney "offers no proof, whether in the form of a supporting affidavit, phone call log, or written correspondence that his request for another adjournment before failing to appear for the April 13, 2004 hearing was granted by the Comptroller's Office." Reply, at ¶ 4. HHC asserts that when an adjournment is authorized the Comptroller sends counsel a letter and sets a new hearing date. The absence of such a letter, HHC maintains, is proof positive that an adjournment was never permitted. Reply, at ¶ 5. HHC further emphasizes that it does not bill claimants for hearings cancelled twenty-four hours in advance, which explains why Ms. Perez's counsel was not billed for the April 13, 2004 date. Reply, at ¶ 6; see also, Bodner Aff., at ¶ 5 ("Claimants and/or their attorneys are not routinely billed for cancelled hearings unless the hearing is confirmed and the parties fail to appear"), ¶ 6.
Analysis
Pursuant to General Municipal Law § 50-h, HHC has "the right to demand an examination of the claimant relative to the occurrence and extent of injuries or damages for which claim is made." See, Unconsolidated Laws § 7401(2) (HHC "may require any claimant hereunder to be examined as provided in section fifty-h of the general municipal law, and all the provisions of such section shall apply to such examination").
Once a demand for a 50-h hearing has been served:
"no action shall be commenced * * * unless the claimant has duly complied with such demand for examination * * *. If such examination is not conducted within ninety days of service of the demand, the claimant may commence the action. The action, however, may not be commenced until compliance with the demand for examination if the claimant fails to appear at the hearing or requests an adjournment or postponement beyond the ninety day period."
General Municipal Law § 50-h(5) (emphasis added).
Case law makes plain that a claimant who adjourns a General Municipal Law § 50-h hearing, may not commence an action until after the statutory hearing has taken place.
In La Vigna v. County of Westchester, 160 AD2d 564 (1st Dept. 1990), a General Municipal Law § 50-h hearing was noticed and was "repeatedly adjourned" at the claimant's request. Ultimately, an action was commenced before a hearing took place. The Appellate Division, First Department emphasized: "The law is well established that, until a potential plaintiff has complied with General Municipal Law § 50-h(1), [the individual] is precluded from commencing an action." See also, Cespedes v. City of New York, 301 AD2d 404, 405 (1st Dept. 2003) (failure to appear for a General Municipal Law § 50-h hearing before commencement of an action is a basis for dismissal); Matter of Dickey v. City of New York, 167 AD2d 238, 239 (1st Dept. 1990); Best v. City of New York, 97 AD2d 389 (1st Dept. 1983), affd. 61 NY2d 847 (1984).
Similarly in Bernoudy v. County of Westchester , 40 AD3d 896 , 897 (2nd Dept. 2007), the Appellate Division, Second Department made clear that:
"A party who has failed to comply with a demand for examination pursuant to General Municipal Law § 50-h is precluded from commencing an action against a municipality. * * * Supreme Court properly granted the defendants' motion to dismiss the complaint since the hearing * * * was adjourned at the plaintiff's request, and he commenced this action without rescheduling a new hearing date after the last adjournment."
Significantly, the court concluded that plaintiff's incarceration did not excuse his failure to be examined. Id.; see also, Patterson v. Ford, 255 AD2d 373 (2nd Dept. 1998) (dismissal proper because General Municipal Law § 50-h hearing was noticed and adjourned multiple times at the claimant's request and plaintiff nonetheless commenced an action before a hearing was conducted); Heins v. Board of Trustees of the Incorporated Village of Greenport, 237 AD2d 570 (2nd Dept. 1997).
Ms. Perez argues that she never failed to show up for her hearing and that she believed there had been an adjournment. She contends that when she finally tried to arrange for a hearing, she was told that one would not be scheduled.
First, Ms. Perez's attorney should have ensured that the Comptroller provided a new hearing date before having confidence that an adjournment was granted (even if that meant seeking a postponement more than a day before the hearing was to take place). The only concrete evidence this Court has with respect to the adjournment of the April 13, 2004 date is that just one day before the hearing Ms. Perez's attorney contacted an employee of Schiavetti, Corgan (as opposed to the Comptroller) and that Schiavetti, Corgan did not commit to a new date since it wrote the Comptroller to be in touch " if" it wished to reschedule. Supp., Ex. C.
Second, counsel should have complied with the Comptroller's terms for seeking an adjournment (regardless of past noncompliance even if postponements were granted on those occasions). The Comptroller very clearly set forth the terms for repeated adjournments, requiring that they "must be requested, in writing or by facsimile, to the Comptroller's Office [and] that [they would] be granted for good cause only and only if the hearing [could] be held prior to claimant's commencement of an action." Supp., Ex. C (emphasis added). There is no indication that the final adjournment was sought in writing. The Comptroller's insistence that an adjournment would "only" be permitted if a hearing could be held prior to commencement of an action, moreover, establishes that there was no intention of abandoning the right to a hearing.
Third, there was no serious attempt to compel a hearing before commencement of the action. After counsel's conversation with an unnamed employee of the Comptroller, nothing more was done. There is no evidence of letters to a supervisor setting forth what had happened, nor was there a motion to compel a hearing.
Incidentally, even after commencing the action, plaintiff has done nothing to pursue this almost three-year-old case. There has been absolutely no disclosure with respect to events that transpired almost five years ago.
In the end, plaintiff has not established a legal basis or supplied sufficient evidence for excusing the requirement that a General Municipal Law § 50-h hearing take place before commencement of an action.
Accordingly, it is
ORDERED that HHC's motion to dismiss the complaint is granted; it is further
ORDERED that the City's unopposed cross-motion to dismiss the complaint is granted and the Clerk of the Court is respectfully directed to enter judgment in favor of the defendants.
This constitutes the decision and order of the Court.