Kowalski v. County of Erie

170 A.D.2d 950, 566 N.Y.S.2d 890, 1991 N.Y. App. Div. LEXIS 1660

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 1, 1991
• Status: Published

Opinion

Order unanimously reversed on the law without costs, motion granted and complaint dismissed without prejudice, in accordance with the following Memorandum: Defendant’s motion to dismiss plaintiffs amended complaint should have been granted because plaintiff failed to comply with defendant’s demand for an oral examination pursuant to section 50-h (5) of the General Municipal Law (see, La Vigna v County of Westchester, 160 AD2d 564; Baumblatt v Battalia, 134 AD2d 226; Restivo v Village of Lynbrook, 84 AD2d 831; Lowinger v City of New York, 64 AD2d 888). A dismissal for failure to fulfill a condition precedent is not a final judgment on the merits. Therefore, after plaintiff has complied with the County’s demand, he may recommence this action, subject to whatever defenses the County may interpose (see, CPLR 205 [a]; Alouette Fashions v Consolidated Edison Co., 119 AD2d 481, 486, affd 69 NY2d 787; De Ronda v Greater Amsterdam School Dist., 91 AD2d 1088). (Appeal from Order of Supreme Court, Erie County, Forma, J.—Dismiss Complaint.) Present— Dillon, P. J., Denman, Green, Lawton and Davis, JJ.