OCTOBER v. Edward October, defendant-respondent. (2008)

In an action to recover damages for personal injuries, the defendant Town of Greenburgh appeals from so much of an order of the Supreme Court, Westchester County (Donovan, J.), entered October 29, 2007, as denied its motion to dismiss the complaint and all cross claims insofar as asserted against it for failure to comply with General Municipal Law § 50-h.

ORDERED that the order is affirmed insofar as appealed from, with costs.

Generally, a plaintiff who has failed to comply with a demand for a hearing served pursuant to General Municipal Law § 50-h(2) is precluded from commencing an action against a municipality (see General Municipal Law § 50-h[5];  Scalzo v. County of Suffolk, 306 A.D.2d 397, 760 N.Y.S.2d 879;  Matter of Pelekanos v. City of New York, 264 A.D.2d 446, 694 N.Y.S.2d 694).   When, however, the hearing has been postponed indefinitely beyond 90 days after service of the demand and the municipality does not reschedule the hearing, a plaintiff's failure to appear for a hearing will not warrant dismissal of the complaint (see General Municipal Law § 50-h[5];  Southern Tier Plastics, Inc. v. County of Broome, 53 A.D.3d 980, 862 N.Y.S.2d 175;  Belton v. Liberty Lines Transit, Inc., 3 A.D.3d 334, 769 N.Y.S.2d 885;  Page v. City of Niagara Falls, 277 A.D.2d 1047, 1048, 716 N.Y.S.2d 173;  McCormack v. Port Wash. Union Free Sch. Dist., 214 A.D.2d 546, 625 N.Y.S.2d 57).   Here, the plaintiffs' first request for an adjournment of the hearing was granted by the appellant and the hearing was rescheduled to a date more than 90 days after service upon them of the demand.   Prior to the second scheduled hearing date, the parties agreed to postpone the hearing without setting another date.   Since the appellant failed in its obligation to reschedule the hearing for the earliest possible date available, the plaintiffs' failure to appear for a hearing did not warrant the dismissal of the complaint insofar as asserted against the appellant (see Southern Tier Plastics, Inc. v. County of Broome, 53 A.D.3d 980, 862 N.Y.S.2d 175;  McCormack v. Port Wash. Union Free School Dist., 214 A.D.2d 546, 625 N.Y.S.2d 57).   Accordingly, the appellant's motion to dismiss the complaint and all cross claims insofar as asserted against it was properly denied.