As reported in the New York Law Journal, the New York State Court of Appeals 2019-2020 term produced noteworthy decisions clarifying: (1) claimants’ “50-H” attendance rights; and (2) out-of-possession landlord liability. In this post, we discuss both decisions.
May a Co-claimant attend a 50-H Hearing?
As a condition precedent to filing a lawsuit against the City of New York, claimants must first file a “notice of claim” and submit to, if requested, an oral examination (a 50-H hearing) under General Municipal Law (GML) Section 50-H. In Colon v. Martin, 35 N.Y.3d 75 (2020), the court addressed whether a co-claimant has a right to attend a 50-H Hearing. Upon analyzing the statute’s construction, the Court of Appeals said no, with harsh results for the claimants.
In the Colon matter, a vehicle operated by an employee of the defendant, the City of New York, rear-ended claimants’ car. Following claimants’ service of a notice of claim, the City served distinct demands for a 50-H hearing upon each claimant. The claimants appeared together, and their attorney insisted they each be in attendance for both 50-H hearings. When the City’s attorney refused, the claimants declined to move forward with the pre-suit oral examination. They then proceeded to file their summons and complaint. Ultimately, plaintiffs’ counsel moved for summary judgment on liability. Defendant City cross-moved to dismiss for failure to comply with GML Section 50-H. The Supreme Court granted defendant’s cross-motion, and the Appellate Division affirmed, holding that non-compliance with Section 50-H barred the action.
On appeal to the New York Court of Appeals, plaintiffs/appellants argued the right to be present at each other’s 50-H oral examination, noting that the language of Section 50-H allows a claimant to have a relative or any other person present at a physical exam. The court, affirming the dismissal, ruled that under “well-established rules of statutory construction, the language of the statute permitting the presence of a third person only applied to physical examinations and not 50-H hearings.” The plaintiffs, therefore, had no justification at law for refusing to attend the 50-H oral examination.
Out-Of-Possession Property Owners’ Liability
New York follows the common law rule that “an out-of-possession landlord who contracts away responsibility for maintenance of their property does not assume liability for breach of that duty.” In Xiang Fu He v. Troon Management, Inc., 34 N.Y.3d 167 (2019) the Court Of Appeals resolved a conflict between the common law rule and a provision of the New York City Administrative Code.
In Xiang, the plaintiff slipped and fell on ice on a public city sidewalk abutting the defendants’ property. The defendants had previously leased the property to the plaintiff’s employer, who agreed to maintain the sidewalk under the lease. NYC Administrative Code 7-210 obligates property owners to keep their property in a reasonably safe condition, thus conflicting with the common law rule.
The defendants moved for summary judgment, claiming Section 7-210 does not apply to out-of-possession landlords relying on the common law rule. Following the trial court’s dismissal of plaintiff’s action, the Appellate Division reversed, agreeing with the defendants’ common law argument.
On higher appeal, however, the Court of Appeals held in a unanimous opinion, that the “clear and unambiguous language of Section 7-210 imposes a non-delegable duty on non-exempt property owners (such as the defendant) to maintain the abutting sidewalk in a safe condition.” The court analyzed the legislative intent of the statute. It held that, while certain classes of properties are exempt from Section 7-210’s reach, the legislature made no distinction between possession and out-of-possession owners. As the defendants’ property was non-exempt, Section 7-210 applied, and the defendants were ultimately held liable.
We’ll continue to highlight new case law from New York and other states across the country in future posts.