BERNOUDY v. COUNTY OF WESTCHESTER (2007)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Bellantoni, J.), dated June 29, 2006, which granted the defendants' motion to dismiss the complaint based on his failure to comply with General Municipal Law § 50-h.

ORDERED that the order 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 (see Patterson v. Ford, 255 A.D.2d 373, 679 N.Y.S.2d 706;  Heins v. Board of Trustees of the Incorporated Village of Greenport, 237 A.D.2d 570, 655 N.Y.S.2d 996;  Arcila v. Incorporated Village of Freeport, 231 A.D.2d 660, 647 N.Y.S.2d 544).

 The Supreme Court properly granted the defendants' motion to dismiss the complaint, since the hearing pursuant to General Municipal Law § 50-h was adjourned at the plaintiff's request, and he commenced this action without rescheduling a new hearing date after the last adjournment (see Scalzo v. County of Suffolk, 306 A.D.2d 397, 398, 760 N.Y.S.2d 879).   Contrary to the plaintiff's contentions, his incarceration does not constitute an exceptional circumstance excusing his failure to be examined (see Zapata v. County of Suffolk, 23 A.D.3d 553, 806 N.Y.S.2d 597;  Scalzo v. County of Suffolk, supra ).