Opinion
2145, 2146.
Decided January 8, 2004.
Order, Supreme Court, Bronx County (Bertram Katz, J.), entered on or about September 5, 2002, which granted defendants' motion to dismiss the complaint, unanimously reversed, on the law and the facts, without costs, the motion to dismiss denied and plaintiff directed to submit to a 50-h hearing within 30 days of service of a copy of this order, with notice of entry. Appeal from order, same court and Justice, entered November 18, 2002, which, insofar as appealable, denied plaintiffs' motion for leave to renew, unanimously dismissed, without costs, as academic, in view of the foregoing.
Steven Wildstein, for Plaintiffs-Appellants.
Ignatius John Melito, for Defendants-Respondents.
Before: Tom, J.P., Saxe, Rosenberger, Williams, Gonzalez, JJ.
Although the general rule is that an action may not be commenced against a New York municipality unless the plaintiff has complied with the municipality's timely demand for a General Municipal Law § 50-h hearing, we have held that where such hearing has been indefinitely postponed and defendant never served a subsequent demand, a motion to dismiss based upon a plaintiff's failure to appear for the hearing may be denied ( Ruiz v. NYCHA, 216 A.D.2d 258 [dismissal denied "insofar as based on plaintiff's failure to appear for a physical examination, where the date for such examination had been postponed indefinitely and defendant never attempted to secure its right thereto by serving plaintiff with another demand therefor"], compare Best v. City of New York, 97 A.D.2d 389, affd 61 N.Y.2d 847 [dismissal upheld where action commenced after plaintiff's repeated rescheduling and failure to appear at 50-h hearing]; see also Ramos v. NYCHA, 256 A.D.2d 195). Denial of the motion to dismiss was appropriate here. The record before us reveals that Westchester County, the owner of the bus on which plaintiff Chandra Belton was a passenger when she was injured, timely served a demand for a 50-h hearing, that plaintiffs were granted a single adjournment, but no subsequent date was set, and that defendants never sought to reschedule the hearing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.