Messena v. Manhattan & Bronx Surface Transit Operating Authority , 670 N.Y.S.2d 358 ( 1998 )

—In a negligence action, inter alia, to recover damages for personal injuries, the defendants appeal (1) from an order of the Supreme Court, Queens County (LeVine, J.), dated July 12, 1996, which denied their motion for summary judgment dismissing the complaint insofar as asserted by the plaintiffs Joseph Messena and Marie Madeline Jocelyn, and (2) from so much of an order of the same court dated March 12, 1997, as upon, in effect, granting renewal, adhered to the original determination. „

Ordered that the appeal from the order dated July 12, 1996, is dismissed as that order was superseded by the order dated March 12, 1997, made in effect, upon renewal; and it is further,

Ordered that the order dated March 12, 1997, is affirmed; and it is further,

Ordered that the respondents are awarded one bill of costs.

The motion for summary judgment was properly denied since there is a factual dispute as to whether the plaintiffs Joseph Messena and Marie Madeline Jocelyn complied with a condition precedent to bringing the action pursuant to Public Authorities Law § 1212 (5) (compare, McCormack v Port Washington Union Free School Dist., 214 AD2d 546, with Bailey v New York City Health & Hosps. Corp., 191 AD2d 606, and Lo Guercio v New York City Tr. Auth., 31 AD2d 759; see generally, Matter of Suffolk County Dept. of Social Servs. [Michael V.] v James M., 83 NY2d 178; Alvarez v Prospect Hosp., 68 NY2d 320). O’Brien, J. P., Thompson, Santucci and Mc-Ginity, JJ., concur.