Ruiz v. New York City Housing Authority

216 A.D.2d 258, 629 N.Y.S.2d 222, 1995 N.Y. App. Div. LEXIS 7106

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 29, 1995
• Status: Published

Opinion

Order, Supreme Court, New York County (Harold Tompkins, J.), entered on or about October 4, 1994, which denied defendant’s motion to dismiss plaintiffs complaint for failure to appear for physical examination as required by General Municipal Law § 50-h and to timely file a summons and complaint and proof of service in accordance with CPLR 306-a and 306-b, unanimously affirmed, without costs.

The motion was properly denied insofar as based on plaintiffs failure to appear for a physical examination, where the date for such examination had been postponed indefinitely and defendant never attempted to secure its right thereto by serving plaintiff with another demand therefor (compare, Best v City of New York, 97 AD2d 389, affd 61 NY2d 847). Nor should the action be dismissed for failure to comply with CPLR 306-a and 306-b, where plaintiff had served defendant with the summons and complaint in this action under the index number purchased in the prior related and successful proceeding to serve a late notice of claim, the revenue-raising purposes of the statutory scheme were satisfied by plaintiffs eventual purchase of a new index number, and defendant suffered no prejudice (CPLR 2001). Concur—Rosenberger, J. P., Kupferman, Asch, Nardelli and Mazzarelli, JJ.