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May 28, 2020

Co-Claimants Not Entitled to Observe GML § 50-h Oral Examinations

New York State’s General Municipal Law gives municipalities an early opportunity to investigate tort claims and explore the facts while information is readily available with a view toward settlement. GML § 50-h provides for both an oral and physical examination of a claimant following the filing of a notice of claim to ascertain the occurrence and extent of any injuries. Failing to comply with a municipality’s pre-suit investigation is grounds for dismissal of a later action.

The value of an early claim investigation to a municipality was recently highlighted by the Court of Appeals’ decision in Colon v. Martin, which affirmed the dismissal of an action in favor of a municipality after two plaintiffs failed to comply with the requirements of GML § 50-h. The plaintiffs contended their vehicle was rear-ended by a pickup truck owned by a municipality and driven by a municipal employee. Although both plaintiffs appeared for their oral examinations as scheduled, their attorney refused to let the examinations proceed unless each plaintiff could be present while the other testified. The municipality rejected the plaintiffs’ demanded procedure, the parties failed to reach an accord, and no examinations ever occurred.

Affirming both the decisions of the Appellate Division and the motion court, the Court of Appeals rejected the plaintiffs’ argument that the municipal defendants constructively waived their right to the examinations by refusing to conduct them simultaneously. The plaintiffs argued the wording of the statute—which allows the examination of a claimant in the presence of their own personal physician and “such relative or other person as he or she may elect”—applied to both the oral and physical examinations. However, in carefully analyzing the statutory language, the Court of Appeals held that a claimant’s right to be accompanied by a physician and “relative or other person” applied only to a pre-suit physical examination—not an oral examination.

The Colon case highlights the value of the municipality’s pre-suit investigation process along with the importance of carefully complying with protections afforded to a municipality at this critical stage. While co-claimants aren’t precluded from observing each other’s hearings in the absence of an objection from the municipality, they don’t have the right to insist that co-claimants be allowed to attend each other’s oral examination.

If you have questions regarding the content of this alert, please contact Steven Mach, associate, at smach@barclaydamon.com or another member of the firm’s Torts & Products Liability Defense Practice Area.

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