Schrader v. Town of Orangetown

226 A.D.2d 620, 641 N.Y.S.2d 570, 1996 N.Y. App. Div. LEXIS 4412

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 22, 1996
• Status: Published

Opinion

In an action to recover damages for unlawful arrest, detention, and violation of civil rights, the defendants appeal from an order of the Supreme Court, Rockland County (Miller, J.), dated May 15, 1995, which denied their motion to dismiss the complaint for the plaintiff’s failure to comply with General Municipal Law § 50-h prior to commencing the action.

Ordered that the order is reversed, on the law, with costs, and the defendants’ motion to dismiss the complaint is granted without prejudice to serving a new complaint upon complying with General Municipal Law § 50-h.

The plaintiff concedes that, pursuant to General Municipal Law § 50-h, a hearing was noticed, that it was adjourned twice, at his request, and that he served a summons and complaint upon the defendants before the hearing was held. The law is well established that a potential plaintiff who has not complied with General Municipal Law § 50-h (1) is precluded from commencing an action against a municipality (see, General Municipal Law § 50-h [5]; Baumblatt v Battalia, 134 AD2d 226, 228; Alouette Fashions v Consolidated Edison Co., 119 AD2d 481, 485-486, affd 69 NY2d 787). Accordingly, the defendants’ motion to dismiss the complaint should have been granted. Rosenblatt, J. P., Sullivan, Copertino, Santucci and Goldstein, JJ., concur.