Concepcion v New York City Hous. Auth.
Annotate this CaseDecided on June 28, 2005
Supreme Court, Bronx County
ANGEL CONCEPCION, Plaintiff,
against
NEW YORK CITY HOUSING AUTHORITY, Defendant.
8216/2005
Dianne T. Renwick, J.
Plaintiff Angel Concepcion commenced this action seeking to recover money damages for personal injuries sustained at the premises owned by defendant the New York City Housing Authority (hereinafter referred to as "NYCHA"). Plaintiff now moves to strike defendant NYCHA's first affirmative defense based upon the failure to satisfy a condition precedent to the commencement of the action, and the third affirmative defense based upon the service of a defective summons and complaint.
Factual Background
On June 28, 2004, plaintiff Angel Concepcion sustained personal injuries when an elevator in a building owned by defendant NYCHA malfunctioned. Reportedly, an elevator door improperly closed and struck plaintiff, causing back injuries, among others. On July 15, 2004, plaintiff timely filed a notice of claim against defendant NYCHA. On September 10, 2004, defendant NYCHA scheduled and conducted a 50-h hearing. Defendant NYCHA next scheduled an independent physical examination ("IME") with Dr. Irving Etking for November 9, 2004. Because plaintiff had surgery on November 2, 2004, counsel for plaintiff contacted counsel for defendant NYCHA requesting an adjournment. Counsel for defendant consented and notified opposing counsel that it would provide a new date in the near future. Counsel for defendant never rescheduled the IME nor demanded that plaintiff submit to an IME. [*2]
Meanwhile, plaintiff commenced this action by purchasing an index number and filing the summons and complaint. The summons and complaint were served on defendant NYCHA on February 24, 2005. Defendant interposed an answer on March 15, 2005. Defendant NYCHA's answer included a first affirmative defense of failure to satisfy a condition precedent to the commencement of the action namely, plaintiff's failure to submit to a physical examination. Defendant's answer also included a third affirmative defense of lack of personal jurisdiction based upon plaintiff's service of a defective summons and complaint that did not set forth the index number. Plaintiff now moves to strike such affirmative defenses as untenable as a matter of law.
Discussion
A.
The Court first examines that part of plaintiff's motion seeking to strike the first affirmative defense that plaintiff failed to satisfy a condition precedent to the commencement of the action against defendant NYCHA by failing to submit to a physical examination. Where a demand for an examination of a claimant has been served, as provided by General Municipal Law 50-H(1)(1), no action can be commenced against the municipality (or public corporation) against which the claim is made unless the claimant has duly complied with the demand for examination. Such compliance is in addition to compliance with the provisions of General Municipal Law §50-e pertaining to the notice of claim requirements. General Municipal Law §50-h(5). Thus, failure to comply with the demand may result in dismissal of the claimant's complaint. Hill v. New York City Transit Authority, 206 AD2d 969 (4th Dept. 1994); see also, Lara v. City of New York, 187 Misc 2d 882(NY Sup. Ct. 2001).
Under certain circumstances, however, courts have held that a municipality (or public corporation) failed to avail itself of such right, permitting the claimant to proceed with suit on his/her claim without a physical examination. For instance, in Kane v. New York City Hous. Auth., 276 AD2d 671 (2nd Dept. 2000), the Court refused to dismiss the action because the plaintiff's failure to appear for a physical examination was due to the failure of the defendant New York City Housing Authority to provide him with a scheduled date for the physical examination. Likewise, in Ramos v. New York City Hous. Auth., 256 AD2d 195 (1st Dept. 1998), the higher court held that the trial court improperly dismissed the complaint on the ground that the plaintiff failed to submit to a physical examination duly requested by the New York City Housing Authority under General Municipal Law §50-h, where the plaintiff did not repeatedly reschedule the physical examination and then failed to appear for the exam. Rather, the Court held that the New York Housing Authority waived the examination when it never provided the plaintiff with a scheduled date for such exam at all and never served plaintiff with a subsequent demand following its initial communication [or communications] prior to a hearing held under CLS Gen Mun. §50-h. Id. See also, Watson v. New York City Hous. Auth., 294 AD2d 236 (1st Dept. 2002); Ruiz v. New York City Hous. Auth., 216 AD2d 258 (1st Dept. 1995).
Here, it is undisputed that plaintiff did not appear for the scheduled physical examination at the doctor's office designated by defendant because of the surgery conducted upon plaintiff a few days before the scheduled date for the examination. Nor is there any dispute that defendant NYCHA consented to the adjournment of the scheduled examination, and that defendant took it [*3]upon itself to reschedule the examination and to notify plaintiff. Defendant, however, never rescheduled the examination and defendant did not demand that plaintiff comply with the physical examination. Nor has defendant provided an excuse for its nonfeasance.
This Court finds that plaintiff's failure to have the physical examination does not require a dismissal of his claims under the circumstances of this case. Once defendant NYCHA realized that the initially scheduled examination was not carried out to fruition and took upon itself to reschedule the exam, defendant NYCHA had a duty, in this Court's view, to take further steps to procure the examination, such as demanding plaintiff to comply with the physical examination or rescheduling the physical examination. Instead of taking any steps to procure the examination, defendant acquiesced in the commencement of the action and included the lack of examination as an affirmative defense in its answer. The Court finds that, by its own nonfeasance, defendant NYCHA failed to avail itself of the right to a physical examination of the claimant. Cf. Ramos v. New York City Hous. Auth., 256 AD2d 195 (1st Dept. 1998); Ruiz v. New York City Hous. Auth., 216 AD2d 258 (1st Dept. 1995).
Deeming the right for an examination waived, unless concrete efforts are taken to procure it, is hardly onerous and is consistent with the purpose of the statute. Indeed, General Municipal Law does not demand that an examination be had. Rather, the statute provides the municipality (or public corporation) with a fair opportunity to decide whether it will pay a claim or subject itself to a lawsuit. Alford v. City of New York, 115 AD2d 420, 424 (1st Dept. 1985), aff'd, 67 NY2d 1019 (1986). To enable the municipality to decide how to proceed in a particular case, the law has provided for an examination of a claimant. Id. However, as the purpose of the statute clearly indicates, such right for an examination was never meant to allow a municipality to arbitrarily compel attendance one day fixed by it and, for failure to appear thereat, foreclose the claimant from proceeding with an action on his claim.
In fact, a similar conclusion was reached by the Appellate Division, First Department in Ruiz v. New York City Hous. Auth., 216 AD2d 258 (1st Dept. 1995), under strikingly similar circumstances. In Ruiz, "the date for such examination had been postponed indefinitely. The Court held that since, like here, the NYCHA "never attempted to secure its right thereto by serving plaintiff with another demand therefor," plaintiff's failure to submit to a physical examination did not afford a basis for dismissal. Id. Cf. Alford v. City of New York, 115 AD2d 420, 424 (1st Dept. 1985), aff'd, 67 NY2d 1019 (1986); Ramos v. New York City Hous. Auth., 256 AD2d 195 (1st Dept. 1998).
In sum, plaintiff's motion to strike defendant's first affirmative defense, based upon plaintiff's failure to appear for a physical examination, as a condition precedent to the commencement of the action, pursuant to General Municipal Law, must be granted. Nonetheless, the complainant cannot refuse to attend a physical examination requested as of right by defendant NYCHA. Indeed, GML 50-h(1) specifically states, in pertinent part, that the "[e]xercise of the right to demand a physical examination of the claimant as provided in this section shall in no way affect the right of a [municipality or public corporation] in a subsequent action brought upon the claim to demand a physical examination of the plaintiff pursuant to statute or court rule."
B.The Court next examines that part of plaintiff's motion seeking to strike the third [*4]affirmative defense that plaintiff served a defective summons and complaint that did not set forth the index number, as prescribed by CPLR §305(a). CPLR §305(a) was amended in 1992 to require that the summons also include the index number and the date the action was filed. This amendment was part of a major legislative package that completely altered the procedure for commencing actions in the supreme and county courts, although not in the lower courts. L. 1992, Ch. 216. Actions in the supreme and county courts are commenced by filing with the court a summons and complaint, or summons with notice, and securing an index number. CPLR §304. This filing procedure, which serves to interpose a claim for statute of limitations purposes, dictates that a plaintiff secure an index number and pay the requisite fee before serving process. CPLR §203-c(1). When the papers are delivered and the fee payment made, the court clerk assigns an index number to the action. CPLR §306-a(a). The index number and date of filing must then be inscribed on the face of the summons. CPLR §305(a).
While this Court agrees that the face of the summons served upon a defendant must bear the index number, this Court disagrees with defendant NYCHA's assertion in its third affirmative defense that the failure to comply with the technical requirements of CPLR §305(a) constitutes a jurisdictional defect. Instead, this Court finds that the omission of the index number from the service copy of a summons constitutes a curable defect and does not affect the jurisdictional efficacy of service of process. See e.g., Cruz v. New York City Housing Auth., 269 AD2d 108 285 (1st Dept. 2000); Forte v. Long Island Rail Road, 143 Misc 2d 663 (Sup. Ct., NY County, 1989). Indeed, courts have found that the failure to include this notation on the summons before it is served will not result in dismissal of the action unless it can be shown that this caused some prejudice. For instance, in Cruz v. New York City Housing Auth., supra, the index number and date of filing were not included on a summons with notice that were served by the plaintiffs. Nevertheless, the court found that failure to comply with the technical requirements of CPLR §305(a) did not warrant dismissal because the defendant failed to show any prejudice whatsoever. Id.
A similar result is warranted in this case where defendant failed to show any prejudice by the service of a summons and complaint devoid of the index number. Cf. Forte v. Long Island Rail Road, 143 Misc 2d 663 (NY Sup. Ct. 1989) (where summons specified Supreme Court of the State of New York but did not indicate venue, court held failure to set forth venue was a mere defect in form that, absent prejudice, could be disregarded). In fact, what defendant conveniently fails to mention is that when the summons and complaint were served, they were accompanied by a receipt that listed the index number and the date they were purchased. Under the circumstances, the third affirmative defense is unavailing.
Conclusion
For the foregoing reasons, it is hereby
ORDERED that defendant NYCHA's first affirmative defense, as set forth in the answer of defendant NYCHA, be stricke[*5]n; it is further
ORDERED that defendant NYCHA's third affirmative defense, as set forth in the answer of defendant NYCHA, be stricken; and it is further
ORDERED that plaintiff must appear for a physical examination, to be scheduled by defendant NYCHA, within 90 days of entry of this Decision and Order.
This constitutes the Decision and Order of the Court.
Dated: June 28, 2005____________________________
Bronx, New York Hon. Dianne T. Renwick, J.S.C.
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