N.Y. Court of Claims Act § 17-a: Examination of notices of intention to file a claim

§ 17-a. Examination of notices of intention to file a claim. 1.

Wherever a notice of intention to file a claim is served, the defendant

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 unless the

parties otherwise stipulate 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 physical examination in the

presence of his or her own personal physician and such relative or other

person as he or she may elect. Exercise of the right to demand a

physical examination of the claimant as provided in this section shall

in no way affect the right of a defendant in a subsequent claim brought

upon the notice of intention to file a claim to demand a physical

examination of the claimant pursuant to statute or court rule.

2. The demand for examination as provided in subdivision one of this

section shall be made by the attorney for the defendant or by such

officer, agent or employee as may be designated by him for that purpose.

The demand shall be in writing and shall be served personally or by

registered or certified mail upon the claimant unless the claimant is

represented by an attorney, when it shall be served personally or by

mail upon his or her attorney. The demand shall give reasonable notice

of the examination. It shall state the person before whom the

examination is to be held, the time, place and subject matter thereof

and, if a physical examination is to be required, it shall so state. No

demand for examination shall be effective against the claimant for any

purpose unless it shall be served as provided in this subdivision within

ninety days from the date of service of the notice of intention to file

a claim.

3. In any examination required pursuant to the provisions of this

section the claimant shall have the right to be represented by counsel.

The examination shall be conducted upon oath or affirmation. The officer

or person before whom the examination is held shall take down or cause

to be taken down every question and answer unless the parties consent

that only the substance of the testimony be inserted. The testimony so

taken, together with the report of the examining physician where a

physical examination is required, shall constitute the record of the

examination. The transcript of the record of an examination, including

a copy of the report of the examining physician shall not be subject to

or available for public inspection, except upon court order upon good

cause shown, but shall be furnished to the claimant or his or her

attorney upon request.

4. A transcript of the testimony taken at an examination pursuant to

the provisions of this section, including a copy of the report of the

examining physician, may be read in evidence by either party, in a claim

founded upon the notice of intention to file a claim in connection with

which it was taken, at the trial thereof or upon assessment of damages

or upon motion. In an action by an executor or administrator to recover

damages for a wrongful act, neglect or default by which a decedent's

death was caused, the testimony of such decedent taken pursuant to the

provisions of this section in respect of such wrongful act, neglect or

default may be read in evidence.

5. Where a demand for examination has been served as provided in

subdivision two of this section no claim shall be commenced against the

defendant against which the notice of intention to file a claim is made

unless the claimant has duly complied with such demand for examination,

which compliance shall be in addition to the requirements of sections

ten and eleven of this chapter. If such examination is not conducted

within ninety days of service of the demand, the claimant may commence

the claim. The claim, however, may not be commenced until compliance

with the demand for examination if the claimant fails to appear at the

hearing or requests an adjournment or postponement beyond the ninety day

period. If the claimant requests an adjournment or postponement beyond

the ninety day period, the defendant shall reschedule the hearing for

the earliest date available.