In the May 7, 2020 opinion by the Court of Appeals in Colon v. Martin the highest court of our state decided co-claimants are specifically not permitted to attend each other's 50-h hearings when the municipality objects. This ruling stands in contrast to the practice as generally permitted by CPLR§ 3113 that parties have the right to attend depositions during a pending action. The decision can be viewed as a victory for the defense bar. The impact of Colon is municipalities will now have the guarantee of an unfettered ability to question claimants individually absent interference, influence, collusion or persuasion from a co-claimant.
Then co-claimants Wilfredo and Ramona Cordero alleged that in January 2015 the vehicle they were in was rear-ended by a vehicle being driven by Willie Martin Jr. and owned by his employers the New York City Department of Environmental Protection and the City of New York. Prior to commencing their lawsuit for personal injuries as a result of the collision, they properly filed claim against the municipality. Counsel for the City served on the claimants separate notices compelling each of the Corderos to appear at a 50-h hearing pursuant to General Municipal Law §50-h.
General Municipal Law § 50-h (1) states: “Wherever a notice of claim is filed against a city . . . the city . . . 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 . . . 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 examination in the presence of his or her own personal physician and such relative or other person as he or she may elect.”
The specific legal issue which was brought up to the Court of Appeals was whether or not the Corderos, co-claimants, could be present at each other's 50-h hearings when the City had objected. When claimants' counsel insisted each claimant be able to be present at one another's hearing, and counsel for the City objected and warned they risked forfeiture of their claims if they each failed to individually appear, the hearings still never did go forward.
Subsequently, suit was commenced by plaintiffs. At the close of pre-trial discovery, plaintiffs moved for summary judgment on liability. Defendants cross-moved for summary judgment based on the Corderos' failure to appear at their 50-h hearings. Plaintiffs argued the defendants waived their right to the hearings since they did not permit them to be conducted at the same time. The Supreme Court agreed with the defendants' position and dismissed the action. The trial court decision was appealed to the Appellate Division.
The Appellate Division affirmed the trial court's decision and order (170 A.D.3d 1109 (2nd Dept., 2019). The appellate court found that General Municipal Law § 50-h did not provide support for the claimants' position that they each had the right to be present when the other testified at a 50-h hearing. Thus, the appellate court agreed dismissal was appropriate as plaintiffs did not satisfy the statutory requirement that they appear for a 50-h hearing. With two dissenting opinions plaintiffs sought review by the Court of Appeals pursuant to CPLR §5601(a).
In order for the Court of Appeals to determine whether the Corderos were correct or not, in insisting that they were entitled to summary judgment on liability in spite of the fact that they had not attended the 50-h hearings at the claim stage the court needed to engage in statutory construction. "As General Municipal Law §50-h(5) makes clear on its face, compliance with a municipality's demand for a section 50-h examination is a condition precedent to commencing an action against that municipality...requiring claimants to comply with section 50-h before commencing an action augments the statute's purpose, which 'is to afford the city an opportunity to early investigate the circumstances surrounding the accident and to explore the merits of the claim, while information is readily available, with a view towards settlement' Alouette Fashions, 119 AD2d at 487; see Davidson, 64 NY2d at 62." Colon v. Martin 2020 NY Slip Op 02681. In Colon the Court of Appeals rejected plaintiffs' argument that the statute permits a claimant to have his/her "personal physician" or "such relative or other person" present and a co-claimant is an "other person". The high Court reasoned that when utilizing the antecedent rule of statutory construction, it is evident the statute was intended to permit the presence of an "other person" during "such examination", meaning the "physical examination" and not the "oral examination".
The Court of Appeals in Colon also reasoned that since the legislature decided claimants were entitled to have counsel present at oral examinations, but never authorized a co-claimant to attend, the legislature therefore did not extend this right.
In addition to statutory construction, the Court of Appeals relied on legislative history. In 1976, the legislature had amended the statute to extend to male claimants, not just female claimants, the ability to have such physical examination in the presence of his/her own personal physician and such relative or other person he/she may choose. Accordingly, "this legislative history makes clear that the legislature intended the oral and physical examinations to be separate undertakings at which claimants are afforded different rights. Consequently, contrary to plaintiff's argument, the statutory language, legislative history, and the circumstances surrounding the 1976 amendment all confirm that a claimant is permitted to bring a personal physician or other person to the physical examination, not the oral examination". Colon v. Martin 2020 NY Slip Op 02681.
Colon is notable as there are differences in the rules and procedures governing 50-h hearings versus depositions. That post-Colon co-claimants cannot sit in on each other's hearings and potentially influence the testimony is a departure from the practice commonly employed at deposition. A defendant's remedy to prevent co-plaintiffs from sitting in on each other's deposition is found at CPLR 3103 (a) which states that "under appropriate circumstances, a court may exercise its discretion to exclude a party from a deposition".