2006 New York Code - Examination Of Notices Of Intention To File A Claim.

 
    §  17-a.  Examination  of  notices  of  intention  to file a claim. 1.
  Wherever a notice of intention to file a claim is served, the  defendant
  shall  have  the right to demand an examination of the claimant relative
  to the occurrence and extent of the injuries or damages for which  claim
  is  made,  which  examination  shall  be  upon oral questions unless the
  parties otherwise stipulate and may include a  physical  examination  of
  the  claimant by a duly qualified physician. If the party to be examined
  desires, he or she is entitled to have such physical examination in  the
  presence of his or her own personal physician and such relative or other
  person  as  he  or  she  may  elect.  Exercise  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 defendant in a subsequent claim brought
  upon the notice of intention to  file  a  claim  to  demand  a  physical
  examination of the claimant pursuant to statute or court rule.
    2.  The  demand for examination as provided in subdivision one of this
  section shall be made by the attorney  for  the  defendant  or  by  such
  officer, agent or employee as may be designated by him for that purpose.
  The  demand  shall  be  in  writing and shall be served personally or by
  registered or certified mail upon the claimant unless  the  claimant  is
  represented  by  an  attorney,  when it shall be served personally or by
  mail upon his or her attorney. The demand shall give  reasonable  notice
  of   the  examination.  It  shall  state  the  person  before  whom  the
  examination is to be held, the time, place and  subject  matter  thereof
  and,  if a physical examination is to be required, it shall so state. No
  demand for examination shall be effective against the claimant  for  any
  purpose unless it shall be served as provided in this subdivision within
  ninety  days from the date of service of the notice of intention to file
  a claim.
    3. In any examination required pursuant  to  the  provisions  of  this
  section  the claimant shall have the right to be represented by counsel.
  The examination shall be conducted upon oath or affirmation. The officer
  or person before whom the examination is held shall take down  or  cause
  to  be  taken  down every question and answer unless the parties consent
  that only the substance of the testimony be inserted. The  testimony  so
  taken,  together  with  the  report  of  the examining physician where a
  physical examination is required, shall constitute  the  record  of  the
  examination.   The transcript of the record of an examination, including
  a copy of the report of the examining physician shall not be subject  to
  or  available  for  public inspection, except upon court order upon good
  cause shown, but shall be furnished  to  the  claimant  or  his  or  her
  attorney upon request.
    4.  A  transcript of the testimony taken at an examination pursuant to
  the provisions of this section, including a copy of the  report  of  the
  examining physician, may be read in evidence by either party, in a claim
  founded  upon the notice of intention to file a claim in connection with
  which it was taken, at the trial thereof or upon assessment  of  damages
  or  upon motion. In an action by an executor or administrator to recover
  damages for a wrongful act, neglect or default  by  which  a  decedent's
  death  was  caused, the testimony of such decedent taken pursuant to the
  provisions of this section in respect of such wrongful act,  neglect  or
  default may be read in evidence.
    5.  Where  a  demand  for  examination  has been served as provided in
  subdivision two of this section no claim shall be commenced against  the
  defendant  against which the notice of intention to file a claim is made
  unless the claimant has duly complied with such demand for  examination,
  which  compliance  shall  be in addition to the requirements of sections
  ten and eleven of this chapter.  If such examination  is  not  conducted
  within  ninety  days of service of the demand, the claimant may commence


  the claim. The claim, 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.  If  the claimant requests an adjournment or postponement beyond
  the ninety day period, the defendant shall reschedule  the  hearing  for
  the earliest date available.