Opinion
CA 01-01781
February 1, 2002.
Appeal from an order of Supreme Court, Erie County (Glownia, J.), entered March 20, 2001, which, inter alia, denied defendants' motion seeking dismissal of the complaint.
MICHAEL B. RISMAN, CORPORATION COUNSEL, BUFFALO (JACK C. JACOBS OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
LIPSITZ, GREEN, FAHRINGER, ROLL, SALISBURY CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., PINE, WISNER, BURNS, AND LAWTON, JJ.
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the complaint is dismissed.
Memorandum:
Supreme Court erred in denying defendants' motion seeking dismissal of the complaint based on plaintiff's repeated failure to appear at the hearings scheduled pursuant to General Municipal Law § 50-h (1). 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 ( see, Patterson v. Ford, 255 A.D.2d 373; Secor v. Town of Orangetown, 250 A.D.2d 588, 589). Although compliance with General Municipal Law § 50-h (1) may be excused in "exceptional circumstances" ( Arcila v. Incorporated Vil. of Freeport, 231 A.D.2d 660, 661), here plaintiff offered no excuse for his repeated failure to appear at the scheduled hearings.