SOUTHERN TIER PLASTICS INC v. Town of Kirkwood, Appellant. (2008)

Appeal from an order of the Supreme Court (Tait, J.), entered January 28, 2008 in Broome County, which, among other things, denied a motion by defendant Town of Kirkwood to dismiss the complaint for failure to state a cause of action.

In June 2006, a creek in the Town of Kirkwood, Broome County flooded, allegedly damaging plaintiff's property.   Plaintiff served a notice of claim upon defendant Town of Kirkwood in September 2006, and, on October 18, 2006, the Town demanded a hearing pursuant to General Municipal Law § 50-h.   The hearing was scheduled for January 8, 2007, but plaintiff subsequently requested that the hearing be adjourned and that its location be changed.   The Town agreed to the adjournment and asked plaintiff to contact it in order to reschedule the examination, but declined to change the examination site.   After plaintiff requested that the Town reconsider its refusal to move the examination site, the Town again declined and requested that plaintiff contact it “as soon as possible” to reschedule the examination.   No further communication transpired between the parties until September 2007, when plaintiff commenced this action.   The Town then moved to dismiss the complaint against it for failure to state a cause of action because the examination had not been conducted prior to commencement of the action.   Supreme Court, among other things, denied the motion and the Town now appeals.

 We affirm.   Generally, compliance with a municipality's timely request for a General Municipal Law § 50-h examination is a condition precedent to commencement of an action by a claimant and “noncompliance is a ground for dismissal” (Matter of Brian VV. v. Chenango Forks Cent. School Dist., 299 A.D.2d 803, 804, 751 N.Y.S.2d 59 [2002];  see Misek-Falkoff v. Metropolitan Tr. Auth. [MTA], 44 A.D.3d 629, 629, 843 N.Y.S.2d 155 [2007] ).   Notably, the examination must be conducted within 90 days of the service of the demand, or a claimant may commence the action without it (see General Municipal Law § 50-h [5] ).   When the hearing has been indefinitely postponed and the municipality does not serve a subsequent demand, a plaintiff's failure to appear for a hearing will not warrant dismissal of the complaint (see Belton v. Liberty Lines Tr., 3 A.D.3d 334, 334, 769 N.Y.S.2d 885 [2004];  Page v. City of Niagara Falls, 277 A.D.2d 1047, 1048, 716 N.Y.S.2d 173 [2000];  Ramos v. New York City Hous. Auth., 256 A.D.2d 195, 196, 684 N.Y.S.2d 2 [1998];  Ruiz v. New York City Hous. Auth., 216 A.D.2d 258, 258, 629 N.Y.S.2d 222 [1995];  McCormack v. Port Washington Union Free School Dist., 214 A.D.2d 546, 546, 625 N.Y.S.2d 57 [1995];  but see Bernoudy v. County of Westchester, 40 A.D.3d 896, 897, 837 N.Y.S.2d 187 [2007];   Scalzo v. County of Suffolk, 306 A.D.2d 397, 397-398, 760 N.Y.S.2d 879 [2003];  Wells v. City of New York, 254 A.D.2d 121, 121, 678 N.Y.S.2d 498 [1998], lv. dismissed 92 N.Y.2d 1046, 685 N.Y.S.2d 422, 708 N.E.2d 179 [1999], cert. denied 527 U.S. 1012, 119 S.Ct. 2355, 144 L.Ed.2d 251 [1999];  Bailey v. New York City Health & Hosps. Corp., 191 A.D.2d 606, 606, 595 N.Y.S.2d 247 [1993], lv. denied 83 N.Y.2d 759, 616 N.Y.S.2d 14, 639 N.E.2d 754 [1994] ).   Here, the Town never served a subsequent demand;  rather, it merely requested that plaintiff reschedule the hearing after indefinite postponement beyond the 90-day limit.   Accordingly, Supreme Court properly concluded that the Town failed to satisfy the requirement of “reschedul[ing] the hearing for the earliest possible date available” (General Municipal Law § 50-h [5] ) and the denial of the Town's motion to dismiss the complaint was proper.   Plaintiff's assertion that this appeal is moot, based upon the fact that the section 50-h examination was held following Supreme Court's decision in this matter, has been examined and found to be without merit.

ORDERED that the order is affirmed, without costs.

MERCURE, J.P.

ROSE, LAHTINEN, KAVANAGH and STEIN, JJ., concur.