Andujar v. New York City Housing Authority

226 A.D.2d 657, 642 N.Y.S.2d 527, 1996 N.Y. App. Div. LEXIS 4548

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 29, 1996
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the defendant appeals from so much of an order of the Supreme Court, Kings County (Garry, J.), dated September 27, 1995, as granted the plaintiffs’ motion to strike the defendant’s fourth, fifth, sixth, and seventh affirmative defenses and denied the defendant’s cross motion to dismiss the complaint.

Ordered that the order is reversed insofar as appealed from, on the law, without costs or disbursements, the plaintiffs’ motion to strike the defendant’s fourth, fifth, sixth, and seventh affirmative defenses is denied, and the defendant’s cross motion to dismiss the complaint is granted without prejudice to recommencement of the action (see, CPLR 205 [a]).

The defendant’s motion to dismiss the plaintiffs’ complaint should have been granted because the injured plaintiff failed to comply with the defendant’s demand for an examination pursuant to General Municipal Law § 50-h (5) (see, Schrader v Town of Orangetown, 226 AD2d 620; Baumblatt v Battalia, 134 AD2d 226, 228; Alouette Fashions v Consolidated Edison Co., 119 AD2d 481, 485-486, affd 69 NY2d 787).

In light of our conclusion, it is not necessary to address the defendant’s remaining contentions. Rosenblatt, J. P., Sullivan, Copertino, Santucci and Goldstein, JJ., concur.