Vives v New York City Hous. Auth.

[*1] Vives v New York City Hous. Auth. 2006 NY Slip Op 50675(U) [11 Misc 3d 1083(A)] Decided on April 17, 2006 Supreme Court, Bronx County Renwick, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 17, 2006
Supreme Court, Bronx County

MARANGELI VIVES, Plaintiff,

against

NEW YORK CITY HOUSING AUTHORITY, Defendant.



6390/2006

Dianne T. Renwick, J.

Plaintiff Marangeli Vives commenced this action seeking to recover money damages for personal injuries sustained at the premises owned and operated by defendant New York City Housing Authority (Hereinafter referred to as "NYCHA" ). Defendant NYCHA now moves for a dismissal of the action based upon plaintiff's failure to appear for a physical examination before the commencement of the action.

Defendant NYCHA argues that the compliance with the submission to a physical examination is a condition precedent to commencing suit, citing to General Municipal Law §50-h. Such statute, however, does not apply to this case, since defendant NYCHA is not a municipality. The applicable statute is Public Authorities Law §1212, which applies exclusively to public corporations like the New York City Housing Authority.

Courts in the First Department have consistently held that since there is no prohibition, in the Public Authorities Law §1212(5), to the commencement of an action until compliance with a demand for an examination, it is improper to dismiss an action based upon a plaintiff's failure to appear for a physical examination before the commencement of the action. See e.g., Cespedes v. City of New York, 301 AD2d 404, 404-405 (1st Dept. 2003); Williams v. The New York City [*2]Transit Authority, 2003 WL 21751230 (NY Supp. App. Term); Hernandez v. New York City Tr. Auth., 41 Misc 2d 1223, affd 20 AD2d 968 (1st Dept. 1964). As the court in Williams v. The New York City Transit Authority, supra, explains: "While the provisions of General Municipal Law § 50-h(5) expressly condition a claimant's right to commence an action against a municipality upon compliance with a duly noticed demand for a physical examination, that requirement cannot be engrafted through judicial fiat into the discrete statutory provisions of Public Authorities Law § 1212(5)."

This Court, however, is cognizant of the fact that the Appellate Division, Second Department, has a contrary view as to whether a plaintiff's failure to appear for a physical examination pursuant to Public Authorities Law §1212(5), at any time before the commencement of the action, requires a dismissal of the action. For instance, in Knotts v. The New York City Housing Authority, 6 AD3d 664 (2nd Dept. 2004), the Second Department granted the defendant's motion to dismiss the complaint based upon the plaintiff's failure to appear for a physical examination before commencement of the action, reasoning that the plaintiff's compliance with defendant's demand for a physical examination pursuant to subdivision 5 of section 1212 of the Public Authorities Law was a statutory condition precedent to the commencement of the action. See also Lo Guercio v. New York City Transit Authority, 31 AD2d 759 (same).

In this action, however, this Court is constrained to adhere to the pronouncement of the First Department. The general rule is that inferior courts must follow applicable decisions of the Appellate Division in its department, where the Court of Appeals has not established a precedent on an issue. This concept is founded upon the bedrock principle of stare decisis, Mountain View Coach Lines v. Storms, 102 AD2d 663 (2nd Dept.1984); People v. Brisotti, 169 Misc 2d 672 (App. Term 1st Dept.1996); People v. McMurty, 141 Misc 2d 510, aff'd, 174 AD2d 988 (4th Dept.1991); Josephson v. Josephson, 121 Misc 2d 572 (Sup. Ct., NY County 1983); see also, Reyes v. Sanchez Pena, N.Y.L.J., 5/13/2002, p. 21, col. 5 (Bronx Supreme Court).

Accordingly, pursuant to case precedent from the Appellate Division, First Department, defendant NYCHA's motion to dismiss the complaint, based upon plaintiff's failure to appear for a physical examination before the commencement of the action, must be denied. Nonetheless, the complainant cannot refuse to attend a physical examination requested as of right by defendant NYCHA.

For the foregoing reasons, it is hereby

ORDERED that defendant NYCHA's motion, seeking a dismissal of the action based upon plaintiff's failure to submit to a physical examination, prior to the commencement of the action, is denied; it is further

ORDERED that plaintiff must appear for a physical examination, to be scheduled by defendant NYCHA, within 90 days of the entry of this Decision and Order. [*3]This constitutes the Decision and Order of the Court

Dated: April 17, 2006 __________________________

Bronx, New York Hon. Dianne T. Renwick, J.S.C.