        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

542
CA 10-02389
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, GORSKI, AND MARTOCHE, JJ.


DEBORAH I. GRAVIUS, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

COUNTY OF ERIE, DEFENDANT-RESPONDENT.


SABATINO C. SANTARPIA, BUFFALO, FOR PLAINTIFF-APPELLANT.

MARTIN POLOWY, ACTING COUNTY ATTORNEY, BUFFALO (BRIAN R. LIEBENOW OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Shirley
Troutman, J.), entered February 9, 2010. The order granted the motion
of defendant to dismiss the complaint and dismissed the complaint.

     It is hereby ORDERED that the order so appealed from is affirmed
without costs.

     Memorandum: Supreme Court properly granted defendant’s motion to
dismiss the complaint based on the failure of plaintiff to comply with
defendant’s demand for an oral examination pursuant to General
Municipal Law § 50-h. “It is well settled that a plaintiff who has
not complied with General Municipal Law § 50-h (1) is precluded from
maintaining an action against a municipality” (McDaniel v City of
Buffalo, 291 AD2d 826) and, here, plaintiff failed to comply with
defendant’s demand pursuant to the statute.

     On October 10, 2008, defendant served a demand for an oral
examination to be conducted on November 19, 2008. Plaintiff’s counsel
indicated by letter dated October 14, 2008 that plaintiff was a
resident of Florida and that he was uncertain whether she would be
able to attend the examination on that date. Plaintiff’s counsel also
inquired whether the examination could be conducted by telephone.
Defense counsel responded by letter dated October 20, 2008 that
defendant would not conduct the examination by telephone and inquired
whether plaintiff could attend the November 19, 2008 examination so
that he could reschedule if necessary. Plaintiff’s counsel responded
in a letter dated November 14, 2008 and stated for the first time that
plaintiff was incarcerated in Florida and unable to attend the
examination. Several months later, on February 17, 2009, defendant
requested an update on plaintiff’s status and inquired whether the
examination could be conducted by video conference if she was still
incarcerated. Plaintiff failed to respond, but she filed the summons
and complaint in this action on September 14, 2009, and defendant
                                 -2-                           542
                                                         CA 10-02389

moved to dismiss the complaint on or about October 5, 2009 for failure
to comply with defendant’s demand for an oral examination pursuant to
General Municipal Law § 50-h.

     “Under the circumstances, plaintiff had the burden of
rescheduling the examination . . . and, because [she] failed to do so
[prior to commencing this action], the court properly dismissed [it]”
(Donohue v County of Erie, 226 AD2d 1083, 1084). “Although compliance
with General Municipal Law § 50-h (1) may be excused in ‘exceptional
circumstances’ ” (McDaniel, 291 AD2d 826), we conclude that there were
no such circumstances here.

     We disagree with the dissent that exceptional circumstances were
present based on the fact that the facility at which plaintiff was
incarcerated in Florida did not have a video conferencing system and
that her attorney attempted to reschedule the examination a short time
after she was released. As noted earlier, plaintiff failed to respond
to defendant’s inquiry whether the examination could be conducted by
video conference at the Florida facility. It was not until plaintiff
responded to defendant’s motion to dismiss that she averred for the
first time that the facility in Florida was unable to conduct video
conferencing. Defendant’s counsel noted during oral argument on the
motion that, had he been notified of the inability to conduct video
conferencing in response to his inquiry, “there were other options
that could have been implemented.” In addition, it was not until
after plaintiff commenced the action and defendant filed its motion to
dismiss the complaint that plaintiff’s counsel sent counsel for
defendant a letter dated October 23, 2009 explaining that plaintiff
had returned to New York and inquiring whether defendant wanted to
reschedule the examination. Indeed, plaintiff indicated in opposition
to the motion that she had been released from the Florida facility at
the end of August 2009, which was prior to the filing of the summons
and complaint, but she provided no explanation for why she did not
attempt to reschedule the examination before she commenced the action.

     All concur except FAHEY and GORSKI, JJ., who dissent and vote to
reverse in accordance with the following Memorandum: We respectfully
dissent and would reverse the order granting defendant’s motion to
dismiss the complaint and reinstate the complaint. “It is well
settled that a plaintiff who has not complied with General Municipal
Law § 50-h (1) is precluded from maintaining an action against a
municipality” (McDaniel v City of Buffalo, 291 AD2d 826). However,
“compliance with [that statute] may be excused in ‘exceptional
circumstances’ ” (id.) and, in our view, such exceptional
circumstances are present in this case.

     Here, plaintiff was prevented from attending an examination
pursuant to General Municipal Law § 50-h based on her incarceration in
Florida, and that examination could not have been conducted by video
conference because the facility at which plaintiff was incarcerated
did not have a video conference system. Even if plaintiff’s attorney
had provided a more expeditious response to defendant’s inquiry
whether that hearing could have been conducted by video conference
while plaintiff was incarcerated in Florida, there is no indication in
                                 -3-                           542
                                                         CA 10-02389

the record concerning what, if any, “other options . . . could have
been implemented” to conduct the hearing originally noticed for
November 19, 2008 during plaintiff’s incarceration (cf. Donohue v
County of Erie, 226 AD2d 1083). Moreover, the record establishes that
plaintiff was released from incarceration in Florida approximately
three weeks before the expiration of the statute of limitations (see §
50-i [1]), and that she returned to New York, verified the complaint
commencing this action and attempted to reschedule the examination
before the statute of limitations period expired.




Entered:   June 10, 2011                       Patricia L. Morgan
                                               Clerk of the Court
