| Ross v County of Suffolk |
| 2011 NY Slip Op 03828 [84 AD3d 775] |
| May 3, 2011 |
| Appellate Division, Second Department |
| Richard Ross, Respondent, v County of Suffolk et al.,Appellants. |
—[*1] Douglas Kaplan, Merrick, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Suffolk County (Rebolini, J.), dated November 29, 2010, which denied theirmotion pursuant to CPLR 3211 to dismiss the complaint upon the plaintiff's failure to appear foran examination pursuant to General Municipal Law § 50-h.
Ordered that the order is reversed, on the law, with costs, and the defendants' motionpursuant to CPLR 3211 to dismiss the complaint is granted.
Compliance with a demand for a General Municipal Law § 50-h examination is acondition precedent to the commencement of an action against a municipal defendant, and thefailure to so comply warrants dismissal of the action (see General Municipal Law §50-h [5]; Steenbuck v Sklarow, 63AD3d 823, 824 [2009]; Kemp vCounty of Suffolk, 61 AD3d 937, 938 [2009]; Bernoudy v County of Westchester, 40 AD3d 896, 897 [2007];Arcila v Incorporated Vil. of Freeport, 231 AD2d 660, 661 [1996]). A plaintiff'sincarceration does not constitute an extraordinary circumstance that excuses compliance with thestatute (see Bernoudy v County of Westchester, 40 AD3d at 897; Zapata v County of Suffolk, 23 AD3d553, 554 [2005]), and it is not the municipal defendant's obligation to procure the attendanceof the plaintiff at the examination (see Zapata v County of Suffolk, 23 AD3d at 554;Scalzo v County of Suffolk, 306 AD2d 397 [2003]).
In this case, the plaintiff, who was being held at the Suffolk County Correctional Facility,was granted an adjournment of his General Municipal Law § 50-h examination toSeptember 30, 2009, but neither he nor his counsel confirmed the examination date as instructedby the defendants, took any steps to procure the plaintiff's attendance on the adjourned date, orappeared for the examination on that date. The plaintiff's subsequent commencement of thisaction without rescheduling the examination therefore warranted dismissal of his complaint(see Kemp v County of Suffolk, 61 AD3d at 938; Bernoudy v County ofWestchester, 40 AD3d at 897; Scalzo v County of Suffolk, 306 AD2d at 397-398).Contrary to the plaintiff's contention, this is not a case in which the parties agreed to an indefinitepostponement or adjournment of the examination so as to place the burden of rescheduling theexamination [*2]on the defendants (cf. Billman v City of Port Jervis, 71AD3d 932 [2010]; Vargas v City ofYonkers, 65 AD3d 585 [2009]; October v Town of Greenburgh, 55 AD3d 704 [2008]). Mastro,J.P., Balkin, Leventhal and Belen, JJ., concur.