Palmieri v. Town of Babylon, 139 A.D.3d 925

Paul Palmieri and the Town of Babylon own adjoining parcels; in a prior suit they entered a so‑ordered stipulation requiring the Town to build a fence, which the Town never built.
Palmieri sued the Town seeking specific performance of the stipulation; while that action was pending his property was reassessed and taxes increased.
Palmieri then brought this action alleging trespass and a § 1983 claim, asserting the reassessment was retaliatory for his enforcement efforts.
Defendants moved to dismiss for failure to comply with General Municipal Law § 50‑h (pre‑suit examination) and sought sanctions under 22 NYCRR 130‑1.1.
Supreme Court dismissed the complaint for failure to comply with § 50‑h and denied sanctions; Palmieri appealed and defendants cross‑appealed the denial of sanctions.
The Appellate Division agreed dismissal for § 50‑h noncompliance was appropriate as to state‑law claims but held § 50‑h does not apply to the federal § 1983 claim and therefore that claim should not have been dismissed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether dismissal for failing to comply with Gen. Mun. Law § 50‑h was proper	Palmieri did not offer excuse/exception; argued reasons inadequate	Town argued Palmieri failed to attend/reschedule § 50‑h exam and thus dismissal appropriate	Court: Dismissal for failure to comply was proper as to state‑law claims (plaintiff failed to appear or seek adjournment; counsel unresponsive)
Whether § 50‑h applies to a § 1983 claim	Palmieri argued § 50‑h requirement should not bar federal claim	Town argued § 50‑h noncompliance required dismissal of entire complaint including § 1983 claim	Court: § 50‑h does not apply to § 1983 claims; the § 1983 cause of action should not have been dismissed
Whether plaintiff established exceptional circumstances excusing § 50‑h noncompliance	Palmieri argued exceptional circumstances or sufficient reason existed	Town argued no reasonable excuse; counsel failed to reschedule despite notice	Court: No exceptional circumstances shown; failure to respond was unreasonable; dismissal of state claims warranted
Whether sanctions under 22 NYCRR 130‑1.1 were warranted	Palmieri contended sanctions were unwarranted	Town sought costs/sanctions for noncompliance and conduct	Court: Supreme Court did not abuse discretion in denying sanctions; affirm denial

Kemp v. County of Suffolk, 61 A.D.3d 937 (2d Dept. 2009) (failure to comply with § 50‑h precludes action against municipality)
Bernoudy v. County of Westchester, 40 A.D.3d 896 (2d Dept. 2007) (same)
Boone v. City of New York, 92 A.D.3d 709 (2d Dept. 2012) (no excuse for failing to attend § 50‑h exam)
Ross v. County of Suffolk, 84 A.D.3d 775 (2d Dept. 2011) (§ 50‑h enforcement principles)
Felder v. Casey, 487 U.S. 131 (U.S. 1988) (federal claims not subject to state notice‑of‑claim statutes)
Rowe v. NYCPD, 85 A.D.3d 1001 (2d Dept. 2011) (§ 50‑h inapplicable to federal civil‑rights claims)
Corvetti v. Town of Lake Pleasant, 227 A.D.2d 821 (3d Dept. 1996) (§ 50‑h does not govern § 1983 claims)
Matter of Rattner v. Planning Commn. of Vil. of Pleasantville, 156 A.D.2d 521 (2d Dept. 1989) (distinguishing scope of § 50‑h)
Matter of Zurat v. Town of Stockport, 142 A.D.2d 1 (3d Dept. 1988) (same)