| Di Pompo v City of Beacon Police Dept. |
| 2017 NY Slip Op 06059 [153 AD3d 597] |
| August 9, 2017 |
| Appellate Division, Second Department |
[*1]
| Michael Di Pompo, Appellant, v City of Beacon PoliceDepartment et al., Respondents. |
Pamela Gabiger, Poughkeepsie, NY, for appellant.
Drake Loeb PLLC, New Windsor, NY (Alana R. Bartley and Stephen J. Gaba of counsel),for respondents.
In an action, inter alia, to recover damages for false arrest and false imprisonment, theplaintiff appeals from (1) an order of the Supreme Court, Dutchess County (Rosa, J.), datedMarch 8, 2016, which, granted the defendants' motion to dismiss the complaint for failure tocomply with General Municipal Law § 50-h, and (2) a judgment of the same courtentered April 8, 2016, which, upon the order, is in favor of the defendants and against himdismissing the complaint. The notice of the appeal from the order is deemed also to be a notice ofappeal from the judgment (see CPLR 5501 [c]).
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the defendants.
The appeal from the order must be dismissed because the right of direct appeal therefromterminated with the entry of the judgment in the action (see Matter of Aho, 39 NY2d 241,248 [1976]). The issues raised on the appeal from the order are brought up for review and havebeen considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
On January 23, 2015, the plaintiff was arrested at his home in Beacon, and it is undisputedthat criminal charges were brought against him as a result of the arrest. On or about April 15,2015, the plaintiff served a notice of claim upon, among others, the City of Beacon PoliceDepartment and the City of Beacon (hereinafter together the defendants). On April 24, 2015, thedefendants served a demand for an oral examination of the plaintiff pursuant to GeneralMunicipal Law § 50-h. On July 8, 2015, the plaintiff appeared for the examinationand answered some, but not all, of the questions posed by the defendants' attorney. Although theplaintiff's attorney objected to many of the questions and instructed the plaintiff not to answer,ostensibly because criminal charges were pending, the plaintiff did not expressly invoke his FifthAmendment privilege against self-incrimination. In January 2016, the plaintiff commenced thisaction, alleging, inter alia, false arrest and false imprisonment. In February 2016, the defendantsmoved to dismiss the complaint for failure to comply with General Municipal Law§ 50-h. The Supreme Court granted the motion.
The purpose of the statutory notice of claim requirement is to afford the public [*2]corporation an adequate opportunity to conduct an investigationinto the circumstances surrounding an alleged occurrence and to explore the merits of the claimwhile information is readily available (see Bowers v City of New York, 147 AD3d 894, 895 [2017]; Avery v New York City Tr. Auth., 138AD3d 770, 771 [2016]). The oral examination of the claimant pursuant to GeneralMunicipal Law § 50-h serves to supplement the notice of claim and provides aninvestigatory tool to the public corporation, with a view toward settlement (see AlouetteFashions v Consolidated Edison Co. of N.Y., 119 AD2d 481, 487 [1986], affd 69NY2d 787 [1987]). "Compliance with a demand for a General Municipal Law§ 50-h examination is a condition precedent to the commencement of an actionagainst a municipal defendant, and the failure to so comply warrants dismissal of the action" (Ross v County of Suffolk, 84 AD3d775, 775-776 [2011]; see General Municipal Law § 50-h [5]).
Here, while the plaintiff appeared for the scheduled examination, he failed to answer many ofthe questions that were posed to him, and he never invoked his Fifth Amendment privilegeagainst self-incrimination. Since he failed to assert his privilege at the time he was relying on it,he was unable to benefit from it (see Salinas v Texas, 570 US &mdash, &mdash, 133 SCt 2174, 2176 [2013]). Even if the plaintiff had properly asserted his privilege, he was obligatedto schedule a new General Municipal Law § 50-h examination after his criminalcase ended, but he failed to do so (seeKemp v County of Suffolk, 61 AD3d 937, 938 [2009]). Instead, the plaintiff simplycommenced an action in January 2016 without indicating the status of the criminal charges.
Under these circumstances, the Supreme Court properly granted the defendants' motion todismiss the complaint for failure to comply with General Municipal Law § 50-h (see Palmieri v Town of Babylon, 139AD3d 925, 926 [2016]; Boone vCity of New York, 92 AD3d 709, 710 [2012]; Kemp v County of Suffolk, 61AD3d at 938; cf. Gold v Rockville Ctr.Police Dept., 71 AD3d 632 [2010]). Dillon, J.P., Cohen, Duffy and Connolly, JJ.,concur.