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Bernoudy v. County of Westchester
837 N.Y.S.2d 187
N.Y. App. Div.
2007
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In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, West-*897Chester County (Bellantoni, J.), dated June 29, 2006, which granted the defendants’ motion to dismiss the complaint based on his failure to comply with General Municipal Law § 50-h.

Ordered that the order is affirmed, with costs.

A party who has failed to comply with a demand for examination pursuant to General Municipal Law § 50-h is precluded from commencing an action against a municipality (see Patterson v Ford, 255 AD2d 373 [1998]; Heins v Board of Trustees of Inc. Vil. of Greenport, 237 AD2d 570 [1997]; Arcila v Incorporated Vil. of Freeport, 231 AD2d 660 [1996]).

The Supreme Court properly granted the defendants’ motion to dismiss the complaint, since the hearing pursuant to General Municipal Law § 50-h was adjourned at the plaintiffs request, and he commenced this action without rescheduling a new hearing date after the last adjournment (see Scalzo v County of Suffolk, 306 AD2d 397, 398 [2003]). Contrary to the plaintiff’s contentions, his incarceration does not constitute an exceptional circumstance excusing his failure to be examined (see Zapata v County of Suffolk, 23 AD3d 553 [2005]; Scalzo u County of Suffolk, supra). Schmidt, J.P., Goldstein, Fisher and Lifson, JJ., concur.

Case Details

Case Name: Bernoudy v. County of Westchester
Court Name: Appellate Division of the Supreme Court of the State of New York
Date Published: May 22, 2007
Citation: 837 N.Y.S.2d 187
Court Abbreviation: N.Y. App. Div.
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