Opinion
11-24-2015
Jacques G. SIMON, et al., Plaintiffs–Respondents–Appellants, v. BELLMORE–MERRICK CENTRAL HIGH SCHOOL DISTRICT, et al., Defendants–Appellants–Respondents.
Congdon, Flaherty, O'Callaghan, Uniondale (Christine Gasser of counsel), for appellants-respondents. Jacques G. Simon, Merrick, for respondents-appellants.
Congdon, Flaherty, O'Callaghan, Uniondale (Christine Gasser of counsel), for appellants-respondents.
Jacques G. Simon, Merrick, for respondents-appellants.
Opinion
Order, Supreme Court, Nassau County (Thomas Feinman, J.), entered May 16, 2014, which, insofar as appealed from as limited by the briefs, granted defendants' motion to dismiss the causes of action alleging common-law negligence and violation of state civil rights law, and denied the motion to dismiss the cause of action under the Dignity for All Students Act (Education Law § 10 et seq.) or, pursuant to CPLR 3211(c), for summary judgment dismissing the complaint for failure to comply with General Municipal Law § 50–h, unanimously reversed, on the law, without costs, and the motion for summary judgment dismissing the complaint pursuant to General Municipal Law § 50–h granted. The Clerk is directed to enter judgment dismissing the complaint.
By refusing to produce for an examination under General Municipal Law § 50–h the minor child on whose behalf they are suing, plaintiffs failed to comply with a condition precedent to commencing the action (id. subd. [5]; see Ward v. New York City Health & Hosps. Corp., 82 A.D.3d 471, 918 N.Y.S.2d 93 [1st Dept.2011] ). Nor did they demonstrate exceptional circumstances so as to excuse their noncompliance (see Steenbuck v. Sklarow, 63 A.D.3d 823, 880 N.Y.S.2d 359 [2d Dept.2009]; Twitty v. City of New York, 195 A.D.2d 354, 600 N.Y.S.2d 66 [1st Dept.1993] ).
In view of the foregoing, we need not address the parties' remaining arguments for affirmative relief.
ACOSTA, J.P., SAXE, RICHTER, GISCHE, KAPNICK, JJ., concur.