NON-APPEARANCE FOR QUESTIONING WAS INEXCUSABLE
A.R., an infant, was hit by a motor vehicle as she was crossing a street near Central Islip Senior High School. And while a notice of claim was timely filed with Suffolk County, neither A.R., nor any of her representatives, appeared in response to that locality’s request for an oral examination [made pursuant to General Municipal Law § 50-h].
After A.R. later filed a personal-injury lawsuit in Suffolk County Supreme Court, the judge ended up dismissing her lawsuit due to her non-appearance for that questioning. And, on appeal, the Appellate Division, Second Department, affirmed that outcome.
Since the whole point of the examination is to allow “the municipality the opportunity to conduct an investigation into the circumstances surrounding an alleged occurrence and explore the merits of the claim while relevant information is readily available,” the failure or refusal to cooperate, among other things, wrongfully denied the municipality an opportunity to settle the matter.
Given that A.R. couldn’t explain away why she failed to satisfy this statutory “condition precedent” to the maintenance of her litigation, the AD2 left the dismissal undisturbed.
We’re sure A.R. questioned that ….
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