McDaniel v. City of Buffalo

291 A.D.2d 826, 737 N.Y.S.2d 904, 2002 N.Y. App. Div. LEXIS 995

Opinion

—Appeal from an order of Supreme Court, Erie County (Glownia, J.), entered March 20, 2001, which, inter alia, denied defendants’ motion seeking dismissal of the complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the complaint is dismissed.

Memorandum: Supreme Court erred in denying defendants’ motion seeking dismissal of the complaint based on plaintiffs repeated failure to appear at the hearings scheduled pursuant to General Municipal Law § 50-h (1). It is well settled that a plaintiff who has not complied with General Municipal Law § 50-h (1) is precluded from maintaining an action against a municipality (see, Patterson v Ford, 255 AD2d 373; Secor v Town of Orangetown, 250 AD2d 588, 589). Although compliance with General Municipal Law § 50-h (1) may be excused in “exceptional circumstances” (Arcila v Incorporated Vil. of Freeport, 231 AD2d 660, 661), here plaintiff offered no excuse for his repeated failure to appear at the scheduled hearings. Present — Pigott, Jr., P.J., Pine, Wisner, Burns and Lawton, JJ.