| Kemp v County of Suffolk |
| 2009 NY Slip Op 03484 [61 AD3d 937] |
| April 28, 2009 |
| Appellate Division, Second Department |
| Richard Kemp, Appellant, v County of Suffolk et al.,Respondents. |
—[*1] Christine Malafi, County Attorney, Hauppauge, N.Y. (Kelly Green of counsel), forrespondents.
In an action, inter alia, to recover damages for assault and false arrest, the plaintiff appeals(1) from an order of the Supreme Court, Suffolk County (Pitts, J.), dated February 20, 2008,which granted the defendants' motion for summary judgment dismissing the complaint based onhis failure to comply with General Municipal Law § 50-h, and (2), as limited by his brief,from so much of an order of the same court dated July 29, 2008, as, upon reargument, adhered tothe original determination.
Ordered that the appeal from the order dated February 20, 2008, is dismissed, as that orderwas superseded by the order dated July 29, 2008, made upon reargument; and it is further,
Ordered that the order dated July 29, 2008, is affirmed insofar as appealed from; and it isfurther,
Ordered that one bill of costs is awarded to the defendants.
"A party who has failed to comply with a demand for examination pursuant to GeneralMunicipal Law § 50-h is precluded from commencing an action against a municipality"(Bernoudy v County of Westchester,40 AD3d 896, 897 [2007]; seeZapata v County of Suffolk, 23 AD3d 553, 554 [2005]; Patterson v Ford, 255AD2d 373 [1998]; Heins v Board of Trustees of Inc. Vil. of Greenport, 237 AD2d [*2]570 [1997]). Contrary to the plaintiff's contention, he failed to offera sufficient reason, or allege any exceptional circumstances, to excuse his compliance withGeneral Municipal Law § 50-h after a related criminal proceeding terminated (see Misek-Falkoff v Metropolitan Tr.Auth. [MTA], 44 AD3d 629 [2007]; Zapata v County of Suffolk, 23 AD3d at554; Arcila v Incorporated Vil. of Freeport, 231 AD2d 660, 661 [1996]; cf. Twitty vCity of New York, 195 AD2d 354 [1993]). Under the circumstances of this case, where theplaintiff invoked his Fifth Amendment privilege against self-incrimination at the hearingpursuant to General Municipal Law § 50-h, on January 7, 2005, the plaintiff, not theCounty defendants, was obligated to reschedule a continuation of the 50-h hearing after thecriminal proceeding terminated two years later (see Misek-Falkoff v Metropolitan Tr. Auth.[MTA], 44 AD3d at 629; Zapata v County of Suffolk, 23 AD3d at 554; Scalzo vCounty of Suffolk, 306 AD2d 397, 397-398 [2003]; Arcila v Incorporated Vil. ofFreeport, 231 AD2d at 661; Bailey v New York City Health & Hosps. Corp., 191AD2d 606 [1993]; Best v City of New York, 97 AD2d 389 [1983], affd 61 NY2d847 [1984]). Thus, the Supreme Court properly, upon reargument, adhered to its originaldetermination granting the defendants' motion for summary judgment dismissing the complaintbased on the plaintiff's failure to comply with General Municipal Law § 50-h.
The parties' remaining contentions are without merit or have been rendered academic.Mastro, J.P., Dillon, Leventhal and Chambers, JJ., concur.