Bernoudy v. County of Westchester

40 A.D.3d 896, 837 N.Y.S.2d 187

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, West- Chester County (Bellantoni, J.), dated June 29, 2006, which granted the defendants’ motion to dismiss the complaint based on his failure to comply with General Municipal Law § 50-h.

Ordered that the order is affirmed, with costs.

A party who has failed to comply with a demand for examination pursuant to General Municipal Law § 50-h is precluded from commencing an action against a municipality (see Patterson v Ford, 255 AD2d 373 [1998]; Heins v Board of Trustees of Inc. Vil. of Greenport, 237 AD2d 570 [1997]; Arcila v Incorporated Vil. of Freeport, 231 AD2d 660 [1996]).

The Supreme Court properly granted the defendants’ motion to dismiss the complaint, since the hearing pursuant to General Municipal Law § 50-h was adjourned at the plaintiffs request, and he commenced this action without rescheduling a new hearing date after the last adjournment (see Scalzo v County of Suffolk, 306 AD2d 397, 398 [2003]). Contrary to the plaintiff’s contentions, his incarceration does not constitute an exceptional circumstance excusing his failure to be examined (see Zapata v County of Suffolk, 23 AD3d 553 [2005]; Scalzo u County of Suffolk, supra). Schmidt, J.P., Goldstein, Fisher and Lifson, JJ., concur.