McVea v Honsaker

[*1] McVea v Honsaker 2020 NY Slip Op 50038(U) Decided on January 6, 2020 Supreme Court, Orange County Vazquez-Doles, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 6, 2020
Supreme Court, Orange County

Kelli R. McVea and Sean David McVea, Plaintiffs,

against

Adam Honsaker, County of Orange and Orange County Sheriff, Defendants.



EF002196-2019.



Pl counsel- Lawrence Lissauer of Finklestein and Partners

Def Counsel- Carol Pierce, County Attorney Orange County
Maria S. Vazquez-Doles, J.

The following papers numbered 1 - 11 were read and considered on a motion by the Defendants for an Order dismissing the complaint pursuant to CPLR §3211(a)(2) and (7);

Notice of Motion/Affirmation of Carol Pierce, Esq./Exhibits A - C/

Memorandum of Law 1 - 6

Affirmation in Opposition of George Kohl, II, Esq./Exhibit A - B7 - 10

Affirmation in Reply of Carol Pierce, Esq 11

This is an action for injuries sustained as a result of a motor vehicle accident on July 5, 2018. Plaintiff, a NYS Trooper, alleges she was headed to a burglary in progress when she was hit in the rear of her car by an Orange County Deputy who alleges he was headed to an emergency. By Decision and Order dated June 10, 2019, this Court granted permission to Plaintiff to file a late notice of claim under Index No. EF002196-2019. As part of that Decision, the Court ordered that the Notice of Claim annexed to the Petition be deemed served as of the date of the Order. Plaintiff's then filed a Summons and Complaint under the above Index Number on July 3, 2019, (21 days from the filing of the Notice of Claim), and prior to the GML §50 hearing and examination before trial. Defendants now move for a dismissal of the complaint for failing to comply with the requirements of General Municipal Law §50(h) and (I).

Whenever a notice of claim is filed against the county, General Municipal Law §50(h) [*2]requires a claimant to submit to an examination prior to the commencement of an action. A demand must be made by the county, upon the claimant or their attorney, within 90 days of the filing of the notice of claim. (See GML§50-h(1) and (2)). In this case a demand was timely served upon the claimants' attorney on or about June 14, 2019, for an examination on August 30, 2019. Just prior to the examination Plaintiff requested the examination be postponed, and this request was consented to by the Defendants by letter dated August 30, 2019, to October 3, 2019.

General Municipal Law § 50-h(5) clearly states that an action "... 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." By commencing the action on July 3, 2019, Plaintiff violated GML §50-h(5). "The law is well established that a potential plaintiff who has not complied with General Municipal Law § 50-h (1) is precluded from commencing an action against a municipality (citing, Heins v Board of Trustees, 237 AD2d 570; Arcila v Incorporated Vil. of Freeport, 231 AD2d 660; Schrader v Town of Orangetown, 226 AD2d 620)." Patterson v Ford, 255 AD2d 373 [2d Dept 1998]. In defense of this violation, Plaintiff argues that the statute of limitations would have run on July 5, 2019, presumably under CPLR §215, if she waited until after the examination. However, this assumption is incorrect as this negligence action does not fit within CPLR §215 and has a three year statute of limitations.

Defendants further allege that Plaintiff is in violation of GML§50-I, as the action was commenced less than 30 days from the filing of the notice of claim. In the prior decision dated June 10, 2019, and entered in e-file on June 12, 2019, the Court deemed the notice of claim filed as of the date of the Decision and Order. Only 21 days had elapsed prior to Plaintiff commencing the action. Accordingly, Plaintiff has failed to comply with this statute as well. Plaintiff offers no law to support an exception to these rules, thus it is hereby

ORDERED that Defendant's motion to dismiss the complaint in its entirety is granted, without prejudice, and this case is marked off calendar.

The foregoing constitutes the Decision and Order of this Court.

Dated:January 6, 2020

Goshen, New York

ENTER:

_____________________________________

HON. MARIA S. VAZQUEZ-DOLES, J.S.C.