Saunders v. New York City Transit Authority

Order, Supreme Court, New York County (Robert Lippmann, J.), entered March 14, 2003, which, to the extent appealed from, granted that portion of defendant’s motion to direct plaintiff to appear for a statutory hearing pursuant to General Municipal Law § 50-h, unanimously reversed, on the law, without costs, and that portion of the order directing plaintiff to appear for a statutory hearing pursuant to General Municipal Law § 50-h vacated. Inasmuch as New York City Transit Authority (NYCTA) has failed to produce any proof that it served plaintiff with a notice for a hearing pursuant to General Municipal Law § 50-h, the IAS court erred in directing plaintiff to appear for such a hearing (see Kelly v New York City Hous. Auth., 248 AD2d 594, 595 [1998]). Even if such notice were properly served upon plaintiff, by failing to raise plaintiffs failure to appear at the hearing as an affirmative defense, NYCTA waived its right to defend the action on that ground (see Hoffman v New York City Hous. Auth., 187 AD2d 334, 338 [1992]). Concur—Tom, J.P., Saxe, Sullivan, Lerner and Friedman, JJ.