Simon v Bellmore-Merrick Cent. High Sch. Dist.

Simon v Bellmore-Merrick Cent. High Sch. Dist. 2015 NY Slip Op 08654 Decided on November 24, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 24, 2015
Acosta, J.P., Saxe, Richter, Gische, Kapnick, JJ.
16236 13901/13

[*1] Jacques G. Simon, et al., Plaintiffs-Respondents-Appellants,

v

Bellmore-Merrick Central High School District, et al., Defendants-Appellants-Respondents.

Congdon, Flaherty, O'Callaghan, Uniondale (Christine Gasser of counsel), for appellants-respondents.

Jacques G. Simon, Merrick, for respondents-appellants.

Order, Supreme Court, Nassau County (Thomas Feinman, J.), entered May 16, 2014, which, insofar as appealed from as limited by the briefs, granted defendants' motion to dismiss the causes of action alleging common-law negligence and violation of state civil rights law, and denied the motion to dismiss the cause of action under the Dignity for All Students Act (Education Law § 10 et seq.) or, pursuant to CPLR 3211(c), for summary judgment dismissing the complaint for failure to comply with General Municipal Law § 50-h, unanimously reversed, on the law, without costs, and the motion for summary judgment dismissing the complaint pursuant to General Municipal Law § 50-h granted. The Clerk is directed to enter judgment dismissing the complaint.

By refusing to produce for an examination under General Municipal Law § 50-h the minor child on whose behalf they are suing, plaintiffs failed to comply with a condition precedent to commencing the action (id. subd [5]; see Ward v New York City Health & Hosps. Corp., 82 AD3d 471 [1st Dept 2011]). Nor did they demonstrate exceptional circumstances so as to excuse their noncompliance (see Steenbuck v Sklarow, 63 AD3d 823 [2d Dept 2009]; Twitty v City of New York, 195 AD2d 354 [1st Dept 1993]).

In view of the foregoing, we need not address the parties' remaining arguments for affirmative relief.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 24, 2015

CLERK