| Palmieri v Town of Babylon |
| 2016 NY Slip Op 03864 [139 AD3d 925] |
| May 18, 2016 |
| Appellate Division, Second Department |
[*1]
| Paul Palmieri, Appellant-Respondent, v Townof Babylon et al., Respondents-Appellants. |
Judith N. Berger, Babylon, NY, for appellant-respondent.
Farber Brocks & Zane, LLP, Garden City, NY (Andrew J. Mihalick of counsel),for respondents-appellants.
In an action, inter alia, to recover damages for trespass and pursuant to 42 USC§ 1983 for violation of federal constitutional rights under color of state law,the plaintiff appeals, as limited by his brief, from so much of an order of the SupremeCourt, Suffolk County (Baisley, Jr., J.), entered November 27, 2012, as granted thatbranch of the defendants' motion which was to dismiss the complaint for failure tocomply with General Municipal Law § 50-h, and the defendantscross-appeal from so much of the same order as denied that branch of their motion whichwas for an award of costs and sanctions pursuant to 22 NYCRR 130-1.1.
Ordered that the order is modified, on the law, by deleting the provision thereofgranting that branch of the defendants' motion which was to dismiss the cause of actionto recover damages pursuant to 42 USC § 1983 for violation of federalconstitutional rights under color of state law for failure to comply with GeneralMunicipal Law § 50-h, and substituting therefor a provision denying thatbranch of the motion; as so modified, the order is affirmed insofar as appealed andcross-appealed from, without costs or disbursements.
In a prior action between the plaintiff and the defendant Town of Babylon, thoseparties, who own adjacent parcels of real property, entered into a so-ordered stipulationof settlement in which the Town agreed to build a fence along its property (see Palmieri v Town ofBabylon, 56 AD3d 740, 741 [2008]). The Town thereafter unsuccessfullyattempted to vacate the stipulation of settlement (see id.) and never built thefence. The plaintiff commenced an action seeking, among other things, specificperformance of the stipulation of settlement. After commencement of that action, thevalue of the plaintiff's real property was reassessed in such a manner as to increase hisproperty taxes. The plaintiff thereafter commenced this action, inter alia, to recoverdamages for trespass and pursuant to 42 USC § 1983 for violation offederal constitutional rights under color of state law, alleging that his property wasreassessed in retaliation for his efforts to enforce the stipulation of settlement.
The defendants subsequently moved, inter alia, to dismiss the complaint for failure tocomply with General Municipal Law § 50-h, and for an award of costs andsanctions pursuant to 22 NYCRR 130-1.1. The Supreme Court granted that branch of themotion which was to dismiss the complaint for failure to comply with General MunicipalLaw § 50-h, and denied that branch of [*2]the motion which sought an award of costs andsanctions.
Generally, " '[a] party who has failed to comply with a demand forexamination pursuant to General Municipal Law § 50-h is precluded fromcommencing an action against a municipality' " (Kemp v County of Suffolk, 61AD3d 937, 938 [2009], quoting Bernoudy v County of Westchester, 40 AD3d 896, 897[2007]; see General Municipal Law § 50-h [5]). Contrary to theplaintiff's contention, he failed to offer a sufficient reason, or allege any exceptionalcircumstances, that would excuse him from complying with General Municipal Law§ 50-h (see Boonev City of New York, 92 AD3d 709, 710 [2012]; Ross v County of Suffolk, 84AD3d 775, 776 [2011]; Kemp v County of Suffolk, 61 AD3d at 938). Theplaintiff failed to appear for, or request an adjournment of, a scheduled section 50-hexamination. After a number of attempts by counsel for the Town and counsel for theplaintiff to contact each other to discuss rescheduling the examination, the Town'scounsel sent the plaintiff's counsel a letter indicating that she should contact him todiscuss rescheduling the examination. The plaintiff's counsel never responded to theletter. The failure to do so was unreasonable, despite a deadline included in the letter,given that the plaintiff had previously failed to appear for the examination and thus wasresponsible for rescheduling it.
Accordingly, the Supreme Court properly granted dismissal of the complaint forfailure to comply with General Municipal Law § 50-h (see Boone v Cityof New York, 92 AD3d at 710; Ross v County of Suffolk, 84 AD3d at 776;Kemp v County of Suffolk, 61 AD3d at 938; Bernoudy v County ofWestchester, 40 AD3d at 896), with the exception of the cause of action to recoverdamages pursuant to 42 USC § 1983 for violation of federal constitutionalrights. General Municipal Law § 50-h does not apply to that cause of action(see General Municipal Law § 50-h [1]; Felder v Casey, 487US 131, 134 [1988]; Rowe vNYCPD, 85 AD3d 1001, 1002 [2011]; Corvetti v Town of LakePleasant, 227 AD2d 821, 822 [1996]; Matter of Rattner v Planning Commn. ofVil. of Pleasantville, 156 AD2d 521, 525 [1989]; Matter of Zurat v Town ofStockport, 142 AD2d 1, 3 [1988]). Although the plaintiff raises this issue for the firsttime on appeal, it involves a question of law that appears on the face of the record andcould not have been avoided had it been brought to the attention of the Supreme Court(see Paolicelli v FieldbridgeAssoc., LLC, 120 AD3d 643, 645-646 [2014]; Pipinias v J. Sackaris & Sons,Inc., 116 AD3d 749, 751 [2014]). Accordingly, we reach this issue anddetermine that the branch of the defendants' motion which was to dismiss the 42 USC§ 1983 cause of action for failure to comply with General Municipal Law§ 50-h should have been denied.
The Supreme Court did not improvidently exercise its discretion in declining toimpose sanctions on the plaintiff and his counsel (see 22 NYCRR 130-1.1).Rivera, J.P., Austin, Sgroi and Barros, JJ., concur.