Summary
In Jacker v County of Suffolk (304 AD2d 528 [2nd Dept 2004]), the Second Department affirmed the dismissal of a claim that was filed without the plaintiff having appeared for the 50-h examination demanded by defendant.
Summary of this case from Licari v. Kings Cnty. Hosp. Ctr.Opinion
2002-08034
Argued March 18, 2003.
April 7, 2003.
In an action, inter alia, to recover damages for assault, the defendants appeal from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), entered August 1, 2002, as granted their motion to dismiss the complaint without prejudice and permitted the plaintiff to recommence the action pursuant to CPLR 205(a) upon compliance with General Municipal Law § 50-h.
Robert J. Cimino, County Attorney, Hauppauge, N.Y. (Anthony P. Moncayo of counsel), for appellants.
Goldberger Dubin, PC, New York, N.Y. (Lawrence A. Dubin of counsel), for respondent.
Before: SANDRA J. FEUERSTEIN, J.P., HOWARD MILLER, SANDRA L. TOWNES, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff failed to appear for a General Municipal Law § 50-h examination demanded by the defendant County of Suffolk before he commenced this action (see General Municipal Law § 50-h, [2], [5]; Andujar v. New York City Hous. Auth., 226 A.D.2d 657; Schrader v. Town of Orangetown, 226 A.D.2d 620; Alouette Fashions v. Consolidated Edison Co. of N.Y., 119 A.D.2d 481, affd 69 N.Y.2d 787). Although the statute of limitations had since expired, the Supreme Court granted the defendants' motion to dismiss the complaint without prejudice to service of a new complaint in accordance with CPLR 205(a) after the plaintiff appeared for an examination in compliance with General Municipal Law § 50-h. Contrary to the defendants' contention, the Supreme Court properly granted the motion to dismiss the complaint without prejudice and permitted the plaintiff to recommence the action pursuant to CPLR 205(a) (see Secor v. Town of Orangetown, 250 A.D.2d 588; Andujar v. New York City Hous. Auth., supra; Schrader v. Town of Orangetown, supra; Alouette Fashions v. Consolidated Edison Co. of N.Y., supra).
The plaintiff's contention that the Supreme Court erred in dismissing the complaint has not been considered since he did not cross-appeal from the order (see Hecht v. City of New York, 60 N.Y.2d 57, 61).
FEUERSTEIN, J.P., H. MILLER, TOWNES and MASTRO, JJ., concur.