Opinion
February 1, 1991
Appeal from the Supreme Court, Erie County, Forma, J.
Present — Dillon, P.J., Denman, Green, Lawton and Davis, JJ.
Order unanimously reversed on the law without costs, motion granted and complaint dismissed without prejudice, in accordance with the following Memorandum: Defendant's motion to dismiss plaintiff's amended complaint should have been granted because plaintiff failed to comply with defendant's demand for an oral examination pursuant to section 50-h (5) of the General Municipal Law (see, La Vigna v County of Westchester, 160 A.D.2d 564; Baumblatt v Battalia, 134 A.D.2d 226; Restivo v Village of Lynbrook, 84 A.D.2d 831; Lowinger v City of New York, 64 A.D.2d 888). A dismissal for failure to fulfill a condition precedent is not a final judgment on the merits. Therefore, after plaintiff has complied with the County's demand, he may recommence this action, subject to whatever defenses the County may interpose (see, CPLR 205 [a]; Alouette Fashions v Consolidated Edison Co., 119 A.D.2d 481, 486, affd 69 N.Y.2d 787; De Ronda v Greater Amsterdam School Dist., 91 A.D.2d 1088).