Summary
holding 50-h hearing was not a condition precedent to commencing an action where defendant requested adjournment, no date was set for rescheduled hearing, and plaintiff had never failed to appear for a hearing
Summary of this case from Marino v. JonkeOpinion
November 15, 1991
Appeal from the Supreme Court, Erie County, McGowan, J.
Present — Callahan, A.P.J., Doerr, Boomer, Balio and Lawton, JJ.
Order unanimously reversed on the law without costs, motion denied and complaint reinstated. Memorandum: In the circumstances of this case, Supreme Court erred in concluding that a hearing pursuant to section 50-h Gen. Mun. of the General Municipal Law was a condition precedent to commencement of plaintiff's action. It is well established that a potential plaintiff is precluded from commencing an action against a municipality until there has been compliance with section 50-h (1) of the General Municipal Law (see, Kowalski v. County of Erie, 170 A.D.2d 950, lv denied 78 N.Y.2d 851; La Vigna v. County of Westchester, 160 A.D.2d 564). On this appeal, however, plaintiff contends that where, as here, no examination was held within 90 days of service of the demand, and the delay in conducting the examination was solely attributable to defendants, plaintiff was free to commence the action. We agree.
General Municipal Law § 50-h (5) provides that "[i]f such examination is not conducted within ninety days of service of the demand, the claimant may commence the action." The statute further provides that the action, however, may not be commenced until compliance with the demand for examination "if the claimant fails to appear at the hearing or requests an adjournment or postponement beyond the ninety day period." Here, the uncontroverted facts in the record establish that the section 50-h examination was adjourned at the request of defendants and that plaintiff never requested any adjournment. Moreover, it appears that the examination was never thereafter rescheduled for a date certain and that plaintiff never failed to appear at a scheduled hearing. Thus, under the plain language of section 50-h (5), as amended, we conclude that plaintiff was free to commence the action when he did (see, General Municipal Law § 50-h).