Michael A. Siragusa, County Attorney, Buffalo (Shawn P. Hennessy of Counsel), for Defendants–Appellants. Roland M. Cercone, PLLC, Buffalo (Roland M. Cercone of Counsel), for Plaintiffs–Respondents.
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, CARNI, and WHALEN, JJ.
MEMORANDUM:
David Glenn's former power of attorney commenced this action seeking damages for injuries sustained by Glenn while he was in the custody of defendant Erie County Sheriff's Department. Contrary to defendants' contention, Supreme Court properly denied their motion seeking dismissal of the complaint based upon plaintiffs' failure to appear at a hearing scheduled pursuant to General Municipal Law § 50–h(1). “It is well settled that a plaintiff who has not complied with General Municipal Law § 50–h(1) is precluded from maintaining an action against a municipality” ( McDaniel v. City of Buffalo, 291 A.D.2d 826, 826, 737 N.Y.S.2d 904). “The failure to submit to ... an examination [pursuant to section 50–h], however, may be excused in exceptional circumstances, such as extreme physical or psychological incapacity” ( Steenbuck v. Sklarow, 63 A.D.3d 823, 824, 880 N.Y.S.2d 359; see Gravius v. County of Erie, 85 A.D.3d 1545, 1546, 925 N.Y.S.2d 732, appeal dismissed 17 N.Y.3d 896, 933 N.Y.S.2d 646, 957 N.E.2d 1150). Here, it is undisputed that Glenn was unable to appear at the hearing because he sustained a severe brain injury and is permanently incapacitated. Furthermore, Glenn's former power of attorney was unable to appear at the hearing or reschedule the hearing for a later date because he was hospitalized with various ailments. Under these circumstances, “plaintiff[s'] failure to appear for ... a hearing does not warrant dismissal of the complaint” ( Steenbuck, 63 A.D.3d at 825, 880 N.Y.S.2d 359; see Hymowitz v. City of New York, 122 A.D.3d 681, 682, 996 N.Y.S.2d 337; Twitty v. City of New York, 195 A.D.2d 354, 356, 600 N.Y.S.2d 66).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.