177 A.D.2d 974
N.Y. App. Div.
1991

Order unanimously reversed on the law without costs, motion denied and complaint reinstated. Memorandum: In the circumstances of this case, Supreme Court erred in concluding that a hearing pursuant to section 50-h of the General Municipal Law was a condition precedent to commencement of plaintiffs action. It is well established that a potential plaintiff is precluded from commencing an action against a municipality until there has been compliance with section 50-h (1) of the General Municipal Law (see, Kowalski v County of Erie, 170 AD2d 950, lv denied 78 NY2d 851; La Vigna v County of Westchester, 160 AD2d 564). On this appeal, however, plaintiff contends that where, as here, no examination was held within 90 days of service of the demand, and the delay in conducting the examination was solely attributable to defendants, plaintiff was free to commence the action. We agree.

General Municipal Law § 50-h (5) provides that "[i]f such examination is not conducted within ninety days of service of the demand, the claimant may commence the action.” The statute further provides that the action, however, may not be commenced until compliance with the demand for examination "if the claimant fails to appear at the hearing or requests an adjournment or postponement beyond the ninety day period.” Here, the uncontroverted facts in the record establish that the section 50-h examination was adjourned at the request of defendants and that plaintiff never requested any adjournment. Moreover, it appears that the examination was never thereafter rescheduled for a date certain and that plaintiff never failed to appear at a scheduled hearing. Thus, under the plain language of section 50-h (5), as amended, we conclude that plaintiff was free to commence the action when he did (see, General Municipal Law § 50-h [5]). (Appeal from Order of Supreme Court, Erie County, McGowan, J.—Summary Judgment.) Present—Callahan, A. P. J., Doerr, Boomer, Balio and Lawton, JJ.