Ross v. County of Suffolk
| Decision Date | 03 May 2011 |
| Citation | 2011 N.Y. Slip Op. 03828,922 N.Y.S.2d 784,84 A.D.3d 775 |
| Parties | Richard ROSS, respondent,v.COUNTY OF SUFFOLK, et al., appellants. |
| Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HEREChristine Malafi, County Attorney, Hauppauge, N.Y. (Christopher A. Jeffreys of counsel), for appellants.Douglas Kaplan, Merrick, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Suffolk County (Rebolini, J.), dated November 29, 2010, which denied their motion pursuant to CPLR 3211 to dismiss the complaint upon the plaintiff's failure to appear for an examination pursuant to General Municipal Law § 50–h.
ORDERED that the order is reversed, on the law, with costs, and the defendants' motion pursuant to CPLR 3211 to dismiss the complaint is granted.
Compliance with a demand for a General Municipal Law § 50–h examination is a condition precedent to the commencement of an action against a municipal defendant, and the failure to so comply warrants dismissal of the action ( see General Municipal Law § 50–h[5]; Steenbuck v. Sklarow, 63 A.D.3d 823, 824, 880 N.Y.S.2d 359; Kemp v. County of Suffolk, 61 A.D.3d 937, 938, 878 N.Y.S.2d 135; Bernoudy v. County of Westchester, 40 A.D.3d 896, 897, 837 N.Y.S.2d 187; Arcila v. Incorporated Vil. of Freeport, 231 A.D.2d 660, 661, 647 N.Y.S.2d 544). A plaintiff's incarceration does not constitute an extraordinary circumstance that excuses compliance with the statute ( see Bernoudy v. County of Westchester, 40 A.D.3d at 897, 837 N.Y.S.2d 187; Zapata v. County of Suffolk, 23 A.D.3d 553, 554, 806 N.Y.S.2d 597), and it is not the municipal defendant's obligation to procure the attendance of the plaintiff at the examination ( see Zapata v. County of Suffolk, 23 A.D.3d at 554, 806 N.Y.S.2d 597; Scalzo v. County of Suffolk, 306 A.D.2d 397, 760 N.Y.S.2d 879).
In this case, the plaintiff, who was being held at the Suffolk County Correctional Facility, was granted an adjournment of his General Municipal Law § 50–h examination to September 30, 2009, but neither he nor his counsel confirmed the examination date as instructed by the defendants, took any steps to procure the plaintiff's attendance on the adjourned date, or appeared for the examination on that date. The plaintiff's subsequent commencement of this action without rescheduling the examination therefore warranted dismissal of his complaint ( see Kemp v. County of Suffolk, 61 A.D.3d at 938, 878 N.Y.S.2d 135; Bernoudy v. County of Westchester, 40 A.D.3d at 897, 837 N.Y.S.2d 187; Scalzo v. County of Suffolk, 306...
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...with General Municipal Law § 50–h (see Boone v. City of New York, 92 A.D.3d 709, 710, 938 N.Y.S.2d 474 ; Ross v. County of Suffolk, 84 A.D.3d 775, 776, 922 N.Y.S.2d 784 ; Kemp v. County of Suffolk, 61 A.D.3d at 938, 878 N.Y.S.2d 135 ). The plaintiff failed to appear for, or request an adjou......
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Einsohn v. N.Y.C. Dep't of Educ., 17-CV-1863 (RRM) (RML)
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