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PLAINTIFF’S CHILD ALLEGEDLY WAS INJURED DURING SCHOOL RECESS; PLAINTIFF’S FAILURE TO PRODUCE THE CHILD FOR THE GENERAL MUNICIPAL LAW 50-H HEARING REQUIRED DISMISSAL OF THE COMPLAINT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the failure to produce the child (who allegedly was injured at school recess) for the General Municipal Law 50-h hearing required dismissal of the complaint:

“As General Municipal Law § 50-h (5) makes clear on its face, compliance with a municipality’s demand for a section 50-h examination is a condition precedent to commencing an action against that municipality” … . “A claimant’s failure to comply with such a demand generally warrants dismissal of the action”… . “Requiring claimants to comply with section 50-h before commencing an action augments the statute’s purpose, which ‘is to afford the [municipality] an opportunity to early investigate the circumstances surrounding the accident and to explore the merits of the claim, while information is readily available, with a view towards settlement’ ” … . ” ‘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’ ” … .

Here, “[b]y 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 . . . Nor did they demonstrate exceptional circumstances so as to excuse their noncompliance”  … . Jeffrey T.C. v Grand Is. Cent. Sch. Dist., 2021 NY Slip Op 04427, Fourth Dept 7-16-21

 

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