Opinion
2013-09563, Index No. 37542/09.
05-18-2016
Paul PALMIERI, appellant, v. TOWN OF BABYLON, et al., respondents.
Judith N. Berger, Babylon, NY, for appellant. Farber Brocks & Zane, LLP, Garden City, NY (Andrew J. Mihalick of counsel), for respondents.
Judith N. Berger, Babylon, NY, for appellant.
Farber Brocks & Zane, LLP, Garden City, NY (Andrew J. Mihalick of counsel), for respondents.
Opinion In an action, inter alia, for specific performance of a so-ordered stipulation of settlement and to recover damages for breach of contract, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Baisley, Jr., J.), entered August 8, 2013, which, upon an order of the same court dated November 8, 2012, inter alia, granting that branch of the defendants' motion which was to dismiss the amended complaint for failure to comply with General Municipal Law § 50–h, dismissed the amended complaint.
ORDERED that the judgment is affirmed, with costs.
“A party who has failed to comply with a demand for examination pursuant to General Municipal Law § 50–h is precluded from commencing an action against a municipality” (Bernoudy v. County of Westchester, 40 A.D.3d 896, 897, 837 N.Y.S.2d 187 ; see Kemp v. County of Suffolk, 61 A.D.3d 937, 938, 878 N.Y.S.2d 135 ). Contrary to the plaintiff's contentions, he failed to offer a sufficient reason, or allege any exceptional circumstances, that would excuse him from complying with General Municipal Law § 50–h (see Misek–Falkoff v. Metropolitan Tr. Auth. [MTA], 44 A.D.3d 629, 629, 843 N.Y.S.2d 155 ; Zapata v. County of Suffolk, 23 A.D.3d 553, 554, 806 N.Y.S.2d 597 ; Matter of Pelekanos v. City of New York, 264 A.D.2d 446, 447, 694 N.Y.S.2d 694 ; Arcila v. Incorporated Vil. of Freeport, 231 A.D.2d 660, 661, 647 N.Y.S.2d 544 ). Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was to dismiss the amended complaint for failure to comply with General Municipal Law § 50–h.
The parties' remaining contentions either are without merit or need not be reached in light of our determination.
Motion by the respondents, inter alia, to strike Point VI of the appellant's reply brief on an appeal from a judgment of the Supreme Court, Suffolk County, dated August 8, 2013. By decision and order on motion of this Court dated October 30, 2015, as amended March 30, 2016, that branch of the motion which is to strike Point VI of the appellant's reply brief was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeal, it is
ORDERED that the branch of the motion which is to strike Point VI of the appellant's reply brief is granted.
RIVERA, J.P., AUSTIN, SGROI and BARROS, JJ., concur.