Opinion
April 19, 1996
Appeal from the Supreme Court, Erie County, Rath, Jr., J.
Present — Denman, P.J., Lawton, Wesley, Balio and Boehm, JJ.
Order unanimously affirmed without costs. Memorandum: Supreme Court properly dismissed the complaint because Michael B. Donohue (plaintiff) failed to comply with General Municipal Law § 50-h. That section permits the commencement of an action if the plaintiff is not examined within 90 days of service of a demand for oral examination. The action may not be commenced, however, if the plaintiff fails to appear at the examination or requests an adjournment or postponement beyond the 90-day period (General Municipal Law § 50-h).
Plaintiff failed to comply with defendant County's demand for examination. After agreeing to appear for examination on a date certain, plaintiff adjourned that examination and failed to respond to defendant County's request that he supply dates when he would be available for examination. Under the circumstances, plaintiff had the burden of rescheduling the examination ( see, Bailey v. New York City Health Hosps. Corp., 191 A.D.2d 606, lv denied 83 N.Y.2d 759) and, because he failed to do so within the statutory period, the court properly dismissed this action ( see, Kowalski v. County of Erie, 170 A.D.2d 950, lv denied 78 N.Y.2d 851).
Plaintiff's reliance upon Ambroziak v. County of Erie ( 177 A.D.2d 974) is misplaced. There, all of the adjournments were at the request of the defendants and there was no evidence that the plaintiff failed to appear at a scheduled hearing.