| Billman v City of Port Jervis |
| 2010 NY Slip Op 02497 [71 AD3d 932] |
| March 23, 2010 |
| Appellate Division, Second Department |
| Denise Billman, as Executrix of Lindsay Billman, Deceased, et al.,Respondents, v City of Port Jervis, Defendant, and Port Jervis School District,Appellant. |
—[*1] The Dweck Law Firm, LLP, New York, N.Y. (Corey Stark of counsel), forrespondents.
In an action to recover damages for conscious pain and suffering and wrongful death, etc.,the defendant Port Jervis School District appeals from so much of an order of the SupremeCourt, Orange County (Lubell, J.), dated May 19, 2009, as granted that branch of the plaintiffs'motion which was to dismiss its sixth affirmative defense insofar as asserted against the plaintiffPeter Billman and denied that branch of its cross motion which was to dismiss the complaintinsofar as asserted by the plaintiff Peter Billman based upon his failure to appear for anexamination pursuant to General Municipal Law § 50-h.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly denied that branch of the appellant's cross motion which was todismiss the complaint insofar as asserted by the plaintiff Peter Billman based upon his failure toappear for an examination pursuant to General Municipal Law § 50-h. Generally, aplaintiff who has failed to comply with a demand for a hearing served pursuant to GeneralMunicipal Law § 50-h (2) is precluded from commencing an action against a municipality(see General Municipal Law § 50-h [5]; Matter of Pelekanos v City of NewYork, 264 AD2d 446 [1999]). However, dismissal of the complaint is not warranted wherethe hearing has been postponed indefinitely beyond the 90 days after service of the demand andthe municipality does not reschedule the hearing (see General Municipal Law §50-h [5]; Vargas v City of Yonkers,65 AD3d 585, 586 [2009]; Octoberv Town of Greenburgh, 55 AD3d 704 [2008]).
Here, the parties agreed to adjourn the scheduled hearing date and the defendant failed toreschedule the hearing for the earliest possible date available. Under the circumstances of thiscase, the failure of Peter Billman to appear for a hearing did not warrant dismissal of thecomplaint insofar as asserted by him (see Vargas v City of Yonkers, 65 AD3d 585, 586 [2009]; October v Town of Greenburgh, 55AD3d 704 [2008]; Page v City of Niagara Falls, 277 AD2d 1047, 1048 [2000];Ramos v New York City Hous. Auth., 256 AD2d 195, 196 [1998]; Ruiz v New YorkCity Hous. Auth., 216 AD2d 258 [1995]).[*2]
The appellant's remaining contention is without merit.Mastro, J.P., Santucci, Dickerson, Belen and Austin, JJ., concur. [Prior Case History: 23Misc 3d 1127(A), 2009 NY Slip Op 50957(U).]