| Steenbuck v Sklarow |
| 2009 NY Slip Op 04890 [63 AD3d 823] |
| June 9, 2009 |
| Appellate Division, Second Department |
| Bradley Steenbuck, Respondent, v Stanley Sklarow,Defendant, and County of Suffolk, Appellant. |
—[*1] Alan J. Schwartz, Garden City, N.Y. (Andre L. Ferenzo of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant County of Suffolkappeals from an order of the Supreme Court, Suffolk County (Baisley, J.), dated August 21,2008, which denied its motion to dismiss the complaint insofar as asserted against it for failure tocomply with General Municipal Law § 50-h.
Ordered that the order is affirmed, with costs.
On April 12, 2006 the plaintiff Bradley Steenbuck sustained traumatic brain injury when hismotorcycle collided with an automobile in the intersection of County Road 111 and the LongIsland Expressway's north service road in Suffolk County. The plaintiff was hospitalized untilDecember 20, 2006. As a result of his injuries, the plaintiff has speech, memory, and cognitivedeficits, cannot hold an intelligent conversation, and has no recall of the accident. The plaintiff'sparents were appointed guardians of the plaintiff's person and property pursuant to MentalHygiene Law article 81 and were authorized to retain the services of an attorney to commence acivil action on the plaintiff's behalf in connection with the accident. After a notice of claim wasfiled asserting that the defendant County was negligent in the construction and maintenance ofthe roadway and in failing to install adequate traffic control devices at the subject intersection,the County served a demand for an examination pursuant to General Municipal Law §50-h. The examination was adjourned indefinitely at the request of the plaintiff's counsel.Several months later, the County served a demand for an examination of the plaintiff's parents.The plaintiff did not appear for an examination; however, the plaintiff's parents did.Subsequently, the plaintiff's counsel forwarded to the County a letter from the plaintiff's treatingphysician describing the plaintiff's injuries and explaining why he was unable to testify.
The plaintiff, by his parents as guardians of his person and property, then commenced theinstant action against the driver of the automobile and the County to recover damages forpersonal injuries. The Supreme Court denied the County's motion to dismiss the complaintinsofar as asserted against it for failure to comply with General Municipal Law § 50-h. Weaffirm.[*2]
When requested, a claimant's submission to a GeneralMunicipal Law § 50-h examination is a condition precedent to bringing an action against amunicipality (see Matter of Brian VV. v Chenango Forks Cent. School Dist., 299 AD2d803, 804 [2002]; Kowalski v County of Erie, 170 AD2d 950 [1991]; La Vigna vCounty of Westchester, 160 AD2d 564, 565 [1990]), and noncompliance is a ground fordismissal (see Asaro v Gilpin, 289 AD2d 429 [2001]; Kowalski v County ofErie, 170 AD2d 950 [1991]). The failure to submit to such an examination, however, may beexcused in exceptional circumstances, such as extreme physical or psychological incapacity(see Arcila v Incorporated Vil. of Freeport, 231 AD2d 660, 661 [1996]; Twitty v Cityof New York, 195 AD2d 354, 356 [1993]; Alford v City of New York, 115 AD2d420, 421-422 [1985], affd on mem below 67 NY2d 1019 [1986]; Hur v City ofPoughkeepsie, 71 AD2d 1014, 1015 [1979]).
Under the circumstances of this case, given the nature and extent of the plaintiff's injuries asdocumented by his treating physician and testified to by his father, the appointment of theplaintiff's parents as his guardians pursuant to Mental Hygiene Law article 81, and theappearance of the plaintiff's parents at a hearing pursuant to General Municipal Law §50-h, the plaintiff's failure to appear for such a hearing does not warrant dismissal of thecomplaint (see Twitty v City of New York, 195 AD2d 354 [1993]; Hur v City ofPoughkeepsie, 71 AD2d 1014 [1979]). Dillon, J.P., Florio, Balkin and Austin, JJ., concur.