| October v Town of Greenburgh |
| 2008 NY Slip Op 07889 [55 AD3d 704] |
| October 14, 2008 |
| Appellate Division, Second Department |
| Donna October et al., Respondents, v Town of Greenburgh,Appellant, and Edward October, Respondent. |
—[*1] Rosenbaum & Rosenbaum P.C., New York, N.Y. (Matthew T. Gammons of counsel), forplaintiffs-respondents.
In an action to recover damages for personal injuries, the defendant Town of Greenburgh appealsfrom so much of an order of the Supreme Court, Westchester County (Donovan, J.), entered October29, 2007, as denied its motion to dismiss the complaint and all cross claims insofar as asserted against itfor failure to comply with General Municipal Law § 50-h.
Ordered that the order is affirmed insofar as appealed from, with costs.
Generally, a plaintiff who has failed to comply with a demand for a hearing served pursuant toGeneral Municipal Law § 50-h (2) is precluded from commencing an action against amunicipality (see General Municipal Law § 50-h [5]; Scalzo v County of Suffolk,306 AD2d 397 [2003]; Matter of Pelekanos v City of New York, 264 AD2d 446[1999]). When, however, the hearing has been postponed indefinitely beyond 90 days after service ofthe demand and the municipality does not reschedule the hearing, a plaintiff's failure to appear for ahearing will not warrant dismissal of the complaint (see General Municipal Law § 50-h[5]; Southern Tier Plastics, Inc. v County ofBroome, 53 AD3d 980 [2008]; Belton v Liberty Lines Tr., 3 AD3d 334 [2004]; Page v City ofNiagara Falls, 277 AD2d 1047, 1048 [2000]; McCormack v Port Washington Union FreeSchool Dist., 214 AD2d 546 [1995]). Here, the plaintiffs' first request for an adjournment of thehearing was granted by the appellant and the hearing was [*2]rescheduled to a date more than 90 days after service upon them of thedemand. Prior to the second scheduled hearing date, the parties agreed to postpone the hearing withoutsetting another date. Since the appellant failed in its obligation to reschedule the hearing for the earliestpossible date available, the plaintiffs' failure to appear for a hearing did not warrant the dismissal of thecomplaint insofar as asserted against the appellant (see Southern Tier Plastics, Inc. v County of Broome, 53 AD3d 980[2008]; McCormack v Port Washington Union Free School Dist., 214 AD2d 546 [1995]).Accordingly, the appellant's motion to dismiss the complaint and all cross claims insofar as assertedagainst it was properly denied. Rivera, J.P., Florio, Angiolillo, McCarthy and Chambers, JJ., concur.