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Colon v. Martin: 2020 NY Slip Op 02681

May 18, 2020 • Posted By Maria E. Stamatelatos • Insurance Coverage

On May 7, 2020, the case of Colon v. Martin was decided by Justice Feinman of the New York Court of Appeals. The issue on appeal was whether a claimant has a right to observe a co-claimant’s section 50-h oral examination over the municipality’s objection.  In the initial action, plaintiffs Wilfredo Colon and Ramona Cordero commenced an action against the City of New York but did not testify at a 50-h hearing as their attorney would not allow them to testify separately without the other plaintiff being present in the room.

            The Court of Appeals affirmed the Appellate Division’s decision that General Municipal Law § 50-h “does not expressly permit nor give the absolute right to a claimant involved in the same alleged incident to be present or to observe another claimant’s oral examination” 170 A.D.3d 1109 (2d Dept. 2019). The Appellate Division found that because plaintiffs failed to comply with the statute by not testifying at a 50-h hearing prior to commencing an action against the City of New York, they were precluded from commencing the instant action. Id. at 1111-1112.

            The Court of Appeals stated that “well established rules of statutory construct” direct that the analysis begins “with the language of the statute” People v. Francis, 30 N.Y.3d 737,740 (2018). The Court further stated that “a court should construe unambiguous language to give effect to its plain meaning” Matter of Walsh, NY Slip Op 08518 *1. Additionally, the Court stated that “Section 50-h(3) provides: “In any examination required pursuant to the provisions of the section the claimant shall have the right to be represented by counsel … Section 50-h(5) states: [w]here a demand for examination has been served…no action shall be commenced against the city … against which the claim is made unless the claimant has duly complied with such demand for examination.” Thus, the Court concluded that, considering General Municipal Law § 50-h as a whole, the legislature’s chosen statutory scheme provides a municipality the authority to conduct separate oral examinations of co-claimants. The Court reasoned that the statute does not grant claimants a right to have a broad category of persons attend their oral examination over the municipality’s objection.

            The Court additionally reasoned that as at the Supreme Court plaintiffs never requested an opportunity to submit belatedly to section 50-h hearings, their request for such relief is therefore unpreserved for review.