MISEK FALKOFF v. Town of Bedford, et al., respondents. (2007)

In an action, inter alia, to recover damages for negligent infliction of emotional distress, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (LaCava, J.), entered August 18, 2006, as granted that branch of the motion of the defendant County of Westchester which was to dismiss the complaint insofar as asserted against it for failure to comply with General Municipal Law §§ 50–e, 50–h, and 50–i and granted that branch of the motion of the defendant Town of Bedford which was to dismiss the complaint insofar as asserted against it pursuant to CPLR 3211(a)(1) and (7).

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

 The Supreme Court properly granted that branch of the motion of the defendant County of Westchester which was to dismiss the complaint insofar as asserted against it for failure to comply with General Municipal Law §§ 50–e, 50–h, and 50–i.  A party who has failed to comply with General Municipal Law § 50–h is generally precluded from commencing an action against a municipality (see Bernoudy v. County of Westchester, 40 A.D.3d 896, 837 N.Y.S.2d 187;  Zapata v. County of Suffolk, 23 A.D.3d 553, 554, 806 N.Y.S.2d 597).  Contrary to the plaintiffs' contentions, the plaintiff Linda D. Misek–Falkoff did not offer a sufficient reason, nor did she allege any exceptional circumstances that would excuse her from complying with General Municipal Law § 50—h (see Arcila v. Incorporated Vil. of Freeport, 231 A.D.2d 660, 661, 647 N.Y.S.2d 544;  cf. Hur v. City of Poughkeepsie, 71 A.D.2d 1014, 420 N.Y.S.2d 414;  Belton v. Liberty Lines Tr., 3 A.D.3d 334, 769 N.Y.S.2d 885).  The plaintiff Adin D. Falkoff, who alleged a derivative loss of consortium claim in the complaint, neither filed a separate notice of claim nor included his claim in Misek–Falkoff's notice of claim.  Thus, he failed to comply with the conditions precedent for suit contained in General Municipal Law §§ 50–e, 50–h, and 50–i.

 Even if the plaintiffs had complied with General Municipal Law §§ 50–e, 50–h, and 50–i, the County nonetheless established its entitlement to dismissal of the complaint on the alternative ground that it neither owned, controlled, nor assumed an affirmative duty to maintain the Saw Mill River Parkway (hereinafter the parkway), the parkway off-ramp at the Green Lane exit, or the railroad crossing where the incident is alleged to have occurred.  Thus, the County cannot be held liable (see Ernest v. Red Cr. Cent. School Dist., 93 N.Y.2d 664, 675, 695 N.Y.S.2d 531, 717 N.E.2d 690;  Carlo v. Town of E. Fishkill, 19 A.D.3d 442, 443, 798 N.Y.S.2d 64;  Horvath v. Rose, 261 A.D.2d 438, 439, 690 N.Y.S.2d 88;  Kovalsky v. Village of Yaphank, 235 A.D.2d 459, 460, 652 N.Y.S.2d 314).

 The Supreme Court also properly granted that branch of the motion of the defendant Town of Bedford which was to dismiss the complaint insofar as asserted against it pursuant to CPLR 3211(a)(1) and (7).  The Town established that it neither owned, controlled, nor assumed an affirmative duty to maintain the parkway, the parkway's off-ramp at the Green Lane exit, or the railroad crossing where the incident allegedly occurred.  While Green Lane itself is a Town road, the Town established, and the plaintiffs conceded, that Green Lane commences on the eastern or far side of the railroad tracks.  The alleged incident occurred prior to Misek–Falkoff's vehicle ever reaching Green Lane. Under these circumstances, the Town cannot be held liable (see Horvath v. Rose, 261 A.D.2d at 439, 690 N.Y.S.2d 88;  Kovalsky v. Village of Yaphank, 235 A.D.2d at 460, 652 N.Y.S.2d 314).

The plaintiffs' remaining contentions are without merit.