ZIMMERMAN v. VAZQUEZ (2025)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Paul I. Marx, J.), dated January 17, 2024.  The order granted the defendants’ motion pursuant to CPLR 3211(a) to dismiss the complaint and directed dismissal of the complaint with prejudice.

ORDERED that the order is modified, on the law, by deleting the provision thereof directing dismissal of the complaint with prejudice, and substituting therefor a provision directing dismissal of the complaint without prejudice;  as so modified, the order is affirmed, without costs or disbursements.

The plaintiff commenced this action to recover damages for personal injuries he allegedly sustained when a vehicle he was driving was struck by a garbage truck owned by the defendant City of Yonkers and operated by the defendant Alan M. Vazquez.  The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint on the ground that the plaintiff failed to comply with a demand for a physical examination pursuant to General Municipal Law § 50–h prior to commencing the action.  In an order dated January 17, 2024, the Supreme Court granted the motion and directed dismissal of the complaint with prejudice.  The plaintiff appeals.

“Compliance with a demand for a General Municipal Law § 50–h examination is a condition precedent to the commencement of an action against a municipal defendant,” and the failure to so comply generally warrants dismissal of the action (Cardella v. Suffolk County Police Dept., 176 A.D.3d 1029, 1030, 111 N.Y.S.3d 57 [internal quotation marks omitted];  see Palmieri v. Town of Babylon, 139 A.D.3d 925, 926, 31 N.Y.S.3d 578).  “The failure to submit to such an examination ․ may be excused in exceptional circumstances, such as extreme physical or psychological incapacity” (Hymowitz v. City of New York, 122 A.D.3d 681, 682, 996 N.Y.S.2d 337;  see C.B. v. Park Ave. Pub. Sch., 172 A.D.3d 980, 981, 100 N.Y.S.3d 343).

Here, the defendants demonstrated that the plaintiff failed to comply with their demand for a physical examination prior to commencing this action (see Cardella v. Suffolk County Police Dept., 176 A.D.3d at 1030, 111 N.Y.S.3d 57).  Morever, the plaintiff failed to assert any exceptional circumstances that would excuse him from complying with General Municipal Law § 50–h (see Aikhoje v. City of New York, 235 A.D.3d 610, 612, 227 N.Y.S.3d 616;  Palmieri v. Town of Babylon, 139 A.D.3d at 926, 31 N.Y.S.3d 578).  Accordingly, the Supreme Court properly directed dismissal of the complaint for failure to comply with General Municipal Law § 50–h (see Cardella v. Suffolk Count Police Dept., 176 A.D.3d at 1030, 111 N.Y.S.3d 57;  Palmieri v. Town of Babylon, 139 A.D.3d at 926, 31 N.Y.S.3d 578).  However, the court should have directed dismissal of the complaint without prejudice (see Jeffrey T.C. v. Grand Is. Cent. Sch. Dist., 196 A.D.3d 1117, 1118, 147 N.Y.S.3d 909;  Jacker v. County of Suffolk, 304 A.D.2d 528, 529, 756 N.Y.S.2d 884).

BARROS, J.P., CHAMBERS, WARHIT and GOLIA, JJ., concur.