JAILED PLAINTIFF MUST TAKE STEPS NECESSARY TO APPEAR AT 50-H HEARING
OR HIS COMPLAINT WILL BE DISMISSED
Daniel Zapata v. County of Suffolk (Index No. 30349/02) (2nd Dept
In an action to recover damages for personal injuries, the County
moved to dismiss based on the claimant's failure to appear for a 50-h
hearing prior to commencing suit. Supreme Court, Suffolk County,
denied the Motion. The Appellate Division reversed.
The plaintiff did not appear for his scheduled General Municipal Law
§ 50-h hearing because he was incarcerated at a correctional facility
upstate. In response to the plaintiff's inquiry, the County of
Suffolk advised him that he was responsible for taking the necessary
steps to arrange for his attendance at the municipal hearing in
accordance with Civil Rights Law § 79. No further action was taken by
either party until the plaintiff commenced this action.
The Appellate Division held that "A party who has failed to comply
with General Municipal Law § 50-h is precluded from commencing an
action against a municipality." (citing Patterson v Ford, 255 AD2d
373; Heins v Board of Trustees of Inc. Vil. of Greenport, 237 AD2d
570; Arcila v Incorporated Vil. of Freeport, 231 AD2d 660). "We
disagree with the Supreme Court's conclusion that the plaintiff's
incarceration constituted an exceptional circumstance excusing his
failure to appear for the repeatedly adjourned hearing and that the
municipal defendant was obligated to arrange for his attendance at
the hearing (citing Scalzo v County of Suffolk, 306 AD2d 397; Civil
Rights Law § 79).
The Complaint was dismissed.
Comment: We often encounter suits and claims brought by prisoners,
and it is common for us to encounter the issue that the plaintiff
cannot appear for depositions because of his incarceration. Judges
are not uniform in the way they handle this issue. Sometimes we are
compelled to travel to the prison to take the deposition. This is a
good decision for defendants.