Knotts v. City of New York

6 A.D.3d 664, 775 N.Y.S.2d 188, 2004 N.Y. App. Div. LEXIS 4963

Opinion

In an action to recover damages for personal injuries, etc., the defendants New York City Transit Authority and Manhattan and Bronx Surface Transit Operating Authority appeal from an order of the Supreme Court, Kings County (Knipel, J.), dated May 27, 2003, which, in effect, denied their motion to dismiss the complaint insofar as asserted against them pursuant to Public Authorities Law § 1212 (5), upon the condition that the plaintiffs appear for an oral examination on a date certain.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed insofar as asserted against the appellants.

The plaintiffs failed to appear for an oral examination pursuant to Public Authorities Law § 1212 (5) at any time before the commencement of their action. Because compliance with Public Authorities Law § 1212 (5) is a condition precedent to the commencement of an action against the appellants, the action should be dismissed insofar as asserted against the appellants, without prejudice to the plaintiffs’ rights pursuant to CPLR 205 (a) (see Lo Guercio v New York City Tr. Auth., 31 AD2d 759 [1969]). Santucci, J.P., Smith, Luciano and Adams, JJ., concur.