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
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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
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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