| Misek-Falkoff v Metropolitan Tr. Auth. (MTA) |
| 2007 NY Slip Op 07411 [44 AD3d 629] |
| October 2, 2007 |
| Appellate Division, Second Department |
| Linda D. Misek-Falkoff et al., Appellants, v MetropolitanTransit Authority (MTA) et al., Defendants, and Town of Bedford et al.,Respondents. |
—[*1] McCabe & Mack, LLP, Poughkeepsie, N.Y. (Kimberly Hunt Lee of counsel), for respondentTown of Bedford. Charlene M. Indelicato, County Attorney, White Plains, N.Y. (Stacey Dolgin-Kmetz andMartin G. Gleeson of counsel), for respondent County of Westchester.
In an action, inter alia, to recover damages for negligent infliction of emotional distress, theplaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court,Westchester County (LaCava, J.), entered August 18, 2006, as granted that branch of the motionof the defendant County of Westchester which was to dismiss the complaint insofar as assertedagainst it for failure to comply with General Municipal Law §§ 50-e, 50-h, and 50-iand granted that branch of the motion of the defendant Town of Bedford which was to dismissthe complaint insofar as asserted against it pursuant to CPLR 3211 (a) (1) and (7).
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly granted that branch of the motion of the defendant County ofWestchester which was to dismiss the complaint insofar as asserted against it for failure tocomply with General Municipal Law §§ 50-e, 50-h, and 50-i. A party who has failedto comply with General Municipal Law § 50-h is generally precluded from commencing anaction against a [*2]municipality (see Bernoudy v County of Westchester,40 AD3d 896 [2007]; Zapata vCounty of Suffolk, 23 AD3d 553, 554 [2005]). Contrary to the plaintiffs' contentions,the plaintiff Linda D. Misek-Falkoff did not offer a sufficient reason, nor did she allege anyexceptional circumstances that would excuse her from complying with General Municipal Law§ 50-h (see Arcila v Incorporated Vil. of Freeport, 231 AD2d 660, 661 [1996];cf. Hur v City of Poughkeepsie, 71 AD2d 1014 [1979]; Belton v Liberty Lines Tr., 3 AD3d334 [2004]). The plaintiff Adin D. Falkoff, who alleged a derivative loss of consortiumclaim in the complaint, neither filed a separate notice of claim nor included his claim inMisek-Falkoff's notice of claim. Thus, he failed to comply with the conditions precedent for suitcontained in General Municipal Law §§ 50-e, 50-h, and 50-i.
Even if the plaintiffs had complied with General Municipal Law §§ 50-e, 50-h,and 50-i, the County nonetheless established its entitlement to dismissal of the complaint on thealternative ground that it neither owned, controlled, nor assumed an affirmative duty to maintainthe Saw Mill River Parkway (hereinafter the parkway), the parkway off-ramp at the Green Laneexit, or the railroad crossing where the incident is alleged to have occurred. Thus, the Countycannot be held liable (see Ernest v Red Cr. Cent. School Dist., 93 NY2d 664, 675 [1999];Carlo v Town of E. Fishkill, 19AD3d 442, 443 [2005]; Horvath v Rose, 261 AD2d 438, 439 [1999]; Kovalsky vVillage of Yaphank, 235 AD2d 459, 460 [1997]).
The Supreme Court also properly granted that branch of the motion of the defendant Town ofBedford which was to dismiss the complaint insofar as asserted against it pursuant to CPLR 3211(a) (1) and (7). The Town established that it neither owned, controlled, nor assumed anaffirmative duty to maintain the parkway, the parkway's off-ramp at the Green Lane exit, or therailroad crossing where the incident allegedly occurred. While Green Lane itself is a Town road,the Town established, and the plaintiffs conceded, that Green Lane commences on the eastern orfar side of the railroad tracks. The alleged incident occurred prior to Misek-Falkoff's vehicle everreaching Green Lane. Under these circumstances, the Town cannot be held liable (seeHorvath v Rose, 261 AD2d at 439; Kovalsky v Village of Yaphank, 235 AD2d at460).
The plaintiffs' remaining contentions are without merit. Spolzino, J.P., Ritter, Dillon andDickerson, JJ., concur.