Bernoudy v. County of Westchester

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

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 22, 2007
• Status: Published

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.