Berkowitz v. City of Long Beach

This motion seeks production of statements given an investigator for the city by the'infant claimant and her mother and the stay of an examination pursuant to section 50-h of the General Municipal Law until those statements have been produced. The present salutary policy is to require that a statement of a party be produced (Levey v. Hemme, 7 A D 2d 646; Totoritus v. Stefan, 6 A D 2d 123). The procedural device through which that policy is accomplished is discovery. Unfortunately for claimants herein their claim is against a municipality and there exists no procedure whereby the statements can, at this stage of the claim, be discovered. Section 324 of the Civil Practice Act, which establishes the procedure for discovery, is applicable only to “ an action pending ” in a court of record, and sections 50-h and 50-i of the General Municipal Law prevent the commencement of any action by claimants until 30 days after notice of claim and until claimants have complied with the demand for examination. While the Legislature has established a means of applying for leave to serve a late notice or correct a defective notice (General Municipal Law, § 50-e, subds. 5, 6), there exists no means of affording the relief claimants seek. The court is without jurisdiction, and the motion is, therefore, dismissed.