Learn About the Law
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
LEGAL SERVICES FOR THE ELDERLY, DISABLED, OR DISADVANTAGED OF WESTERN NEW YORK, INC. AND KAREN NICHOLSON, CHIEF EXECUTIVE OFFICER, AS PERMANENT GUARDIAN OF DAVID GLENN, PLAINTIFFS–RESPONDENTS, v. COUNTY OF ERIE AND ERIE COUNTY SHERIFF'S DEPARTMENT, DEFENDANTS–APPELLANTS.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: David Glenn's former power of attorney commenced this action seeking damages for injuries sustained by Glenn while he was in the custody of defendant Erie County Sheriff's Department. Contrary to defendants' contention, Supreme Court properly denied their motion seeking dismissal of the complaint based upon plaintiffs' failure to appear at a hearing scheduled pursuant to General Municipal Law § 50–h (1). “It is well settled that 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 AD3d 826, 826). “The failure to submit to ․ an examination [pursuant to section 50–h], however, may be excused in exceptional circumstances, such as extreme physical or psychological incapacity” (Steenbuck v. Sklarow, 63 AD3d 823, 824; see Gravius v. County of Erie, 85 AD3d 1545, 1546, appeal dismissed 17 NY3d 896). Here, it is undisputed that Glenn was unable to appear at the hearing because he sustained a severe brain injury and is permanently incapacitated. Furthermore, Glenn's former power of attorney was unable to appear at the hearing or reschedule the hearing for a later date because he was hospitalized with various ailments. Under these circumstances, “plaintiff[s'] failure to appear for ․ a hearing does not warrant dismissal of the complaint” (Steenbuck, 63 AD3d at 825; see Hymowitz v. City of New York, 122 AD3d 681, 682; Twitty v. City of New York, 195 A.D.2d 354, 356).
Frances E. Cafarell
Clerk of the Court
A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.
Docket No: CA 14–01387
Decided: February 06, 2015
Court: Supreme Court, Appellate Division, Fourth Department.
Search our directory by legal issue
Enter information in one or both fields (Required)
Harness the power of our directory with your own profile. Select the button below to sign up.
Learn more about FindLaw’s newsletters, including our terms of use and privacy policy.
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
Search our directory by legal issue
Enter information in one or both fields (Required)