CARDELLA v. SUFFOLK COUNTY POLICE DEPARTMENT (2019)

DECISION & ORDER

In an action, inter alia, to recover damages for false arrest and false imprisonment, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Martha L. Luft, J.), dated January 9, 2018.  The order granted the defendants' motion to dismiss the complaint for failure to comply with General Municipal Law § 50–h, and denied the plaintiff's cross motion, inter alia, to compel the defendants to conduct an examination pursuant to General Municipal Law § 50–h.

ORDERED that the order is affirmed, with costs.

On May 22, 2016, the plaintiff was arrested at his home in Huntington Station.  On or about August 18, 2016, the plaintiff served a notice of claim upon the Suffolk County Police Department and Police Officer Gregory Boccard (hereinafter together the defendants).  On September 8, 2016, the defendants served a demand for an oral examination of the plaintiff pursuant to General Municipal Law § 50–h.  The demand scheduled the examination for November 10, 2016.  It is undisputed that the plaintiff did not appear for the examination.  In May 2017, the plaintiff commenced this action, inter alia, to recover damages for false arrest and false imprisonment.  In June 2017, the defendants moved to dismiss the complaint for failure to comply with General Municipal Law § 50–h.  The plaintiff cross-moved, inter alia, to compel the defendants to conduct a General Municipal Law § 50–h examination (see General Municipal Law § 50–i).  By order dated January 9, 2018, the Supreme Court granted the defendants' motion and denied the plaintiff's cross motion.  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 warrants dismissal of the action” (Colon v. Martin, 170 A.D.3d 1109, 1110, 97 N.Y.S.3d 311 [internal quotation marks omitted] ).  Here, the plaintiff's commencement of this action without rescheduling the examination warranted dismissal of the complaint (see Ross v. County of Suffolk, 84 A.D.3d 775, 775–776, 922 N.Y.S.2d 784;  Bernoudy v. County of Westchester, 40 A.D.3d 896, 897, 837 N.Y.S.2d 187;  Scalzo v. County of Suffolk, 306 A.D.2d 397, 397–398, 760 N.Y.S.2d 879).  Accordingly, we agree with the Supreme Court's determination granting the defendants' motion to dismiss the complaint for failure to comply with General Municipal Law § 50–h (see Di Pompo v. City of Beacon Police Dept., 153 A.D.3d 597, 598, 57 N.Y.S.3d 426;  Boone v. City of New York, 92 A.D.3d 709, 710, 938 N.Y.S.2d 474).

Furthermore, since the plaintiff failed to offer any excuse for his noncompliance with the defendants' demand for a General Municipal Law § 50–h examination, the Supreme Court providently exercised its discretion in denying the plaintiff's cross motion, inter alia, to compel the defendant to conduct such an examination (see Matter of Pelekanos v. City of New York, 264 A.D.2d 446, 447, 694 N.Y.S.2d 694;  see generally Wilson v. NewYork City Hous. Auth., 303 A.D.2d 403, 404, 756 N.Y.S.2d 279;  Matter of Dickey v. City of New York, 167 A.D.2d 238, 239, 561 N.Y.S.2d 737).

The plaintiff's contentions concerning his alleged attempts to reschedule the examination are improperly raised for the first time on appeal and have not been considered by this Court.

RIVERA, J.P., COHEN, MALTESE and BRATHWAITE NELSON, JJ., concur.