Opinion
497 CA 21-00842
07-08-2022
Judith LANDA, Plaintiff-Respondent, v. Mark POLONCARZ, Erie County Executive, Defendant-Appellant.
HODGSON RUSS LLP, BUFFALO (RYAN K. CUMMINGS OF COUNSEL), FOR DEFENDANT-APPELLANT. ZEICHNER ELLMAN & KRAUSE LLP, NEW YORK CITY (J. DAVID MORRISSY OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
HODGSON RUSS LLP, BUFFALO (RYAN K. CUMMINGS OF COUNSEL), FOR DEFENDANT-APPELLANT.
ZEICHNER ELLMAN & KRAUSE LLP, NEW YORK CITY (J. DAVID MORRISSY OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: LINDLEY, J.P., NEMOYER, CURRAN, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting those parts of the motion seeking to dismiss the first through fourth causes of action for failure to comply with General Municipal Law § 50-h and dismissing those causes of action without prejudice, and as modified the order is affirmed without costs.
Memorandum: In this action seeking, inter alia, damages arising from alleged defamatory statements made by defendant, defendant appeals from an order denying in part his motion to dismiss the complaint. We agree with defendant that Supreme Court erred in denying the motion insofar as it sought to dismiss the first through fourth causes of action on the ground that plaintiff failed to comply with defendant's demand for an oral examination pursuant to General Municipal Law § 50-h (1), and we therefore modify the order accordingly. "[A] plaintiff who has not complied with General Municipal Law § 50–h (1) is precluded from maintaining an action against a municipality" ( McDaniel v. City of Buffalo , 291 A.D.2d 826, 826, 737 N.Y.S.2d 904 [4th Dept. 2002] ; see Jeffrey T.C. v. Grand Is. Cent. Sch. Dist. , 196 A.D.3d 1117, 1117-1118, 147 N.Y.S.3d 909 [4th Dept. 2021] ). Here, plaintiff adjourned the examination on two separate occasions and failed to respond to defendant's subsequent request that she choose from a list of dates when she would be available for examination. Under the circumstances, plaintiff bore the burden of rescheduling the examination (see Kluczynski v. Zwack , 170 A.D.3d 1656, 1657, 94 N.Y.S.3d 903 [4th Dept. 2019] ; Bailey v. New York City Health & Hosps. Corp. , 191 A.D.2d 606, 606, 595 N.Y.S.2d 247 [2d Dept. 1993], lv denied 83 N.Y.2d 759, 616 N.Y.S.2d 14, 639 N.E.2d 754 [1994] ), and because plaintiff failed to reschedule, she was barred by statute from commencing an action (see § 50-h [5] ). "Although compliance with General Municipal Law § 50–h (1) may be excused in ‘exceptional circumstances’ " ( McDaniel , 291 A.D.2d at 826, 737 N.Y.S.2d 904 ), there were no such circumstances here. Contrary to defendant's contention, however, the first through fourth causes of action should be dismissed without prejudice (see Jeffrey T.C. , 196 A.D.3d at 1118, 147 N.Y.S.3d 909 ; Kowalski v. County of Erie , 170 A.D.2d 950, 950, 566 N.Y.S.2d 890 [4th Dept. 1991], lv denied 78 N.Y.2d 851, 573 N.Y.S.2d 69, 577 N.E.2d 60 [1991] ).
In light our determination, we do not address defendant's remaining contentions.