Summary
In Kluczynski plaintiffs failed to appear at the scheduled examination due to an apparent disagreement with their attorney.
Summary of this case from Chiles v. City of BuffaloOpinion
370 CA 18–01770
03-22-2019
Dale KLUCZYNSKI and Lynda Kluczynski, Plaintiffs–Respondents, v. Adam ZWACK and Michael Russell, Defendants–Appellants.
BURDEN, HAFNER & HANSEN, LLC, BUFFALO (JACLYN S. WANEMAKER OF COUNSEL), FOR DEFENDANTS–APPELLANTS. HOGANWILLIG, PLLC, AMHERST (SCOTT MICHAEL DUQUIN OF COUNSEL), FOR PLAINTIFFS–RESPONDENTS.
BURDEN, HAFNER & HANSEN, LLC, BUFFALO (JACLYN S. WANEMAKER OF COUNSEL), FOR DEFENDANTS–APPELLANTS.
HOGANWILLIG, PLLC, AMHERST (SCOTT MICHAEL DUQUIN OF COUNSEL), FOR PLAINTIFFS–RESPONDENTS.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is granted and the complaint is dismissed.
Memorandum: Defendants, who are employees of the Village of Blasdell, appeal from an order denying their motion to dismiss the complaint on the ground that, inter alia, plaintiffs failed to comply with defendants' demand for an oral examination pursuant to General Municipal Law § 50–h (1). We agree with defendants that Supreme Court erred in denying the motion. "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 A.D.2d 826, 826, 737 N.Y.S.2d 904 [4th Dept. 2002] ; see Gravius v. County of Erie, 85 A.D.3d 1545, 1545, 925 N.Y.S.2d 732 [4th Dept. 2011], appeal dismissed 17 N.Y.3d 896, 933 N.Y.S.2d 646, 957 N.E.2d 1150 [2011] ). Here, plaintiffs failed to appear at the scheduled examination due to an apparent disagreement with their attorney. Under the circumstances, plaintiffs had the burden of rescheduling the examination and, because they failed to do so, they were barred by statute from commencing an action (see § 50–h [5 ]; cf. Gravius, 85 A.D.3d at 1545–1546, 925 N.Y.S.2d 732 ). "Although compliance with General Municipal Law § 50–h (1) may be excused in ‘exceptional circumstances’ ’’ ( McDaniel, 291 A.D.2d at 826, 737 N.Y.S.2d 904 ; see Gravius, 85 A.D.3d at 1546, 925 N.Y.S.2d 732 ), there were no such circumstances here. Therefore, the complaint against defendants, who were acting within the scope of their duties as municipal employees, must be dismissed (see McDaniel, 291 A.D.2d at 826, 737 N.Y.S.2d 904 ; see generally § 50–e [1][a] ).