Dickey v. City of New York

Appellate Division of the Supreme Court of New York

Dickey v. City of New York

167 A.D.2d 238, 561 N.Y.S.2d 737, 1990 N.Y. App. Div. LEXIS 13616

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 15, 1990

StatusPublished

Cited by4 cases

This text of 167 A.D.2d 238 (Dickey v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dickey v. City of New York, 167 A.D.2d 238, 561 N.Y.S.2d 737, 1990 N.Y. App. Div. LEXIS 13616 (N.Y. Ct. App. 1990).

Pincite

Opinion

Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered on or about October 4, 1989, which denied petitioners’ motion seeking an order directing the respondent City of New York to schedule an examination of petitioners pursuant to General Municipal Law § 50-h before September 24, 1989, or, alternatively, granting them the right to commence an action against the city prior to submitting to the 50-h hearing, unanimously affirmed, without costs.

Petitioners, a father and his 10-year-old son, filed a notice of claim with the City Comptroller on July 8, 1988, alleging personal injuries, emotional distress and unlawful imprisonment stemming from the alleged unlawful entry by police into their private residence. Pursuant to section 50-h of the General Municipal Law, the city served a demand upon petitioners to appear for an examination on October 11, 1988. This examination, as well as three others subsequently scheduled by the city, was adjourned by petitioners, who had relocated to New Mexico after the incident.

[239]*239A fifth scheduled hearing was set for March 29, 1989. On petitioners’ failure to appear, the city considered them in default, and subsequently refused to reschedule the father’s hearing.

Since the Statute of Limitations for the commencement of an action by the adult petitioner had run before the IAS court could render its decision on petitioners’ order to show cause dated August 31, 1989, the only remedy the IAS court could provide the father would be to allow him to maintain his action without having submitted to a 50-h hearing. In view of the fact that four hearings were adjourned at petitioner’s request and that he defaulted on the fifth and final hearing, we find the IAS court properly exercised its discretion in refusing to compel the city to waive its right to conduct a 50-h hearing (see, e.g., Best v City of New York, 97 AD2d 389, affd 61 NY2d 847). Concur—Sullivan, J. P., Ross, Kassal, Smith and Rubin, JJ.

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Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered on or about October 4, 1989, which denied petitioners’ motion seeking an order directing the respondent City of New York to schedule an examination of petitioners pursuant to General Municipal Law § 50-h before September 24, 1989, or, alternatively, granting them the right to commence an action against the city prior to submitting to the 50-h hearing, unanimously affirmed, without costs.

Petitioners, a father and his 10-year-old son, filed a notice of claim with the City Comptroller on July 8, 1988, alleging personal injuries, emotional distress and unlawful imprisonment stemming from the alleged unlawful entry by police into their private residence. Pursuant to section 50-h of the General Municipal Law, the city served a demand upon petitioners to appear for an examination on October 11, 1988. This examination, as well as three others subsequently scheduled by the city, was adjourned by petitioners, who had relocated to New Mexico after the incident.

[239]*239A fifth scheduled hearing was set for March 29, 1989. On petitioners’ failure to appear, the city considered them in default, and subsequently refused to reschedule the father’s hearing.

Since the Statute of Limitations for the commencement of an action by the adult petitioner had run before the IAS court could render its decision on petitioners’ order to show cause dated August 31, 1989, the only remedy the IAS court could provide the father would be to allow him to maintain his action without having submitted to a 50-h hearing. In view of the fact that four hearings were adjourned at petitioner’s request and that he defaulted on the fifth and final hearing, we find the IAS court properly exercised its discretion in refusing to compel the city to waive its right to conduct a 50-h hearing (see, e.g., Best v City of New York, 97 AD2d 389, affd 61 NY2d 847). Concur—Sullivan, J. P., Ross, Kassal, Smith and Rubin, JJ.

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Bluebook (online)

167 A.D.2d 238, 561 N.Y.S.2d 737, 1990 N.Y. App. Div. LEXIS 13616, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dickey-v-city-of-new-york-nyappdiv-1990.

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