| Vargas v City of Yonkers |
| 2009 NY Slip Op 06176 [65 AD3d 585] |
| August 11, 2009 |
| Appellate Division, Second Department |
| Angel Vargas et al., Respondents, v City of Yonkers,Appellant. |
—[*1] Harmon, Linder & Rogowsky, New York, N.Y. (Mitchell Dranow, Mineola, N.Y., ofcounsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendant appeals from anorder of the Supreme Court, Westchester County (Nastasi, J.), entered July 24, 2008, whichdenied its motion to dismiss the complaint for failure to comply with General Municipal Law§ 50-h.
Ordered that the order is affirmed, with costs.
Generally, a plaintiff who has failed to comply with a demand for a hearing served pursuantto General Municipal Law § 50-h (2) is precluded from commencing an action against amunicipality (see General Municipal Law § 50-h [1], [5]; Matter of Pelekanosv City of New York, 264 AD2d 446 [1999]). However, dismissal of the complaint is notwarranted where the hearing has been postponed indefinitely beyond the 90-day period and themunicipality does not reschedule the hearing (see General Municipal Law § 50-h[5]; October v Town ofGreenburgh, 55 AD3d 704 [2008]).
Here, after the defendant served the plaintiffs with a demand for a hearing to be held onNovember 15, 2006, the plaintiffs' attorney adjourned the scheduled hearing date and no newhearing date was selected. Since the hearing had been indefinitely postponed and the defendantdid not serve a subsequent demand, the plaintiffs' failure to appear for a hearing did not warrantdismissal of the complaint (see General Municipal Law § 50-h [5]; October v Town of Greenburgh, 55AD3d 704 [2008]; Southern TierPlastics, Inc. v County of Broome, 53 AD3d 980 [2008]; Belton v Liberty Lines Tr., 3 AD3d334 [2004]; Page v City of Niagara Falls, 277 AD2d 1047, 1048 [2000];McCormack v Port Washington Union Free School Dist., 214 AD2d 546 [1995]).Accordingly, the defendant's motion to dismiss the complaint based upon the plaintiffs' failure toappear for a hearing was properly denied. Rivera, J.P., Dillon, Covello, Eng and Hall, JJ.,concur.