Kowalski v. County of Erie

Feb 1, 1991
Versions:170 A.D.2d 950
566 N.Y.S.2d 890
1991 N.Y. App. Div. LEXIS 1660

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 plaintiffs 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 AD2d 564; Baumblatt v Battalia, 134 AD2d 226; Restivo v Village of Lynbrook, 84 AD2d 831; Lowinger v City of New York, 64 AD2d 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 AD2d 481, 486, affd 69 NY2d 787; De Ronda v Greater Amsterdam School Dist., 91 AD2d 1088). (Appeal from Order of Supreme Court, Erie County, Forma, J.—Dismiss Complaint.) Present— Dillon, P. J., Denman, Green, Lawton and Davis, JJ.