Mitchell v. County of Dutchess

66 Misc. 2d 522, 321 N.Y.S.2d 715, 1971 N.Y. Misc. LEXIS 1642

Opinion

Edward M. O’Gorman, J.

This is a special proceeding brought under article 4 of the CPLR to vacate the demand for examination served pursuant to section 50-h of the General Municipal Law. The demand states that the examination is to be held before an Assistant County Executive of Dutchess County.

Petitioners seek to vacate the demand on the ground that the county official is ineligible under CPLR 3113 (subd. [a]) to conduct the examination. The provisions of the CPLR are not applicable to this examination, which is governed by the provisions of section 50-h of the General Municipal Law. Such an examination is required to be held prior to the commencement of an action against a municipal body (cf. Waugh v. Firemen’s Fund Ins. Co., 52 Misc 2d 141, 143 ; Berkowitz v. City of Long Beach, 33 Misc 2d 449).

Section 50-h provides in subdivision 2 that the demand ‘ ‘ shall state the person before whom the examination is to be held ”. Subdivision 3 refers to the ‘ ‘ officer or person before whom the examination is had ”, and such reference clearly indicates that examination before an officer of the municipal body was contemplated, if not expected, in this type of an examination (cf. Alongis v. City of New York, 54 Misc 2d 771).

Since the demand was proper, it is unnecessary to determine the other questions raised on this motion. In this connection, however, see Matter of Town of Johnstown v. City of Gloversville (36 A D 2d 143).

The application is dismissed.