N.Y. General Municipal Law § 50-h: Examination of claims

§ 50-h. Examination of claims. 1. Wherever a notice of claim is filed

against a city, county, town, village, fire district, ambulance district

or school district the city, county, town, village, fire district,

ambulance district or school district 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 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 city,

county, town, village, fire district, ambulance district or school

district in a subsequent action brought upon the claim to demand a

physical examination of the plaintiff pursuant to statute or court rule.

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

section shall be made by the chief executive officer or, where there is

no such officer, by the chairman of the governing body of the city,

county, town, village, fire district or school district 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 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. If the place of

examination is located outside the municipality against which the claim

is made, the claimant may demand, within ten days of such service, that

the examination be held at a location within such municipality. Such

location shall be determined by the municipality. If a physical

examination is to be required and there is no appropriate place for such

an examination within the municipality, such examination shall be given

at a location as close to such municipality as practicable. 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 filing of the notice of claim, or if service of

the notice of claim is made by service upon the secretary of state

pursuant to section fifty-three of this article, within one hundred days

from the date of such service.

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 had 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 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 attorney upon

request.

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

the provisions of this section may be read in evidence by either party,

in an action founded upon the 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 action shall be commenced against the

city, county, town, village, fire district or school district against

which the claim is made unless the claimant has duly complied with such

demand for examination, which compliance shall be in addition to the

requirements of section fifty-e of this chapter. If such examination is

not conducted within ninety days of service of the demand, the claimant

may commence the action. The action, 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 city, county, town,

village, fire district or school district shall reschedule the hearing

for the earliest possible date available.