Palmieri v. Town of Babylon , 30 N.Y.S.3d 567 ( 2016 )

Palmieri v Town of Babylon (2016 NY Slip Op 03865)

Palmieri v Town of Babylon

2016 NY Slip Op 03865

Decided on May 18, 2016

Appellate Division, Second 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 May 18, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
LEONARD B. AUSTIN
SANDRA L. SGROI
BETSY BARROS, JJ.

2013-09563
(Index No. 37542/09)

[*1]Paul Palmieri, appellant,

v

Town of Babylon, et al., respondents.

Judith N. Berger, Babylon, NY, for appellant.

Farber Brocks & Zane, LLP, Garden City, NY (Andrew J. Mihalick of counsel), for respondents.

DECISION & ORDER

In an action, inter alia, for specific performance of a so-ordered stipulation of settlement and to recover damages for breach of contract, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Baisley, Jr., J.), entered August 8, 2013, which, upon an order of the same court dated November 8, 2012, inter alia, granting that branch of the defendants' motion which was to dismiss the amended complaint for failure to comply with General Municipal Law § 50-h, dismissed the amended complaint.

ORDERED that the judgment is affirmed, with costs.

"A party who has failed to comply with a demand for examination pursuant to General Municipal Law § 50-h is precluded from commencing an action against a municipality" (Bernoudy v County of Westchester, 40 AD3d 896, 897; see Kemp v County of Suffolk, 61 AD3d 937, 938). Contrary to the plaintiff's contentions, he failed to offer a sufficient reason, or allege any exceptional circumstances, that would excuse him from complying with General Municipal Law § 50-h (see Misek-Falkoff v Metropolitan Tr. Auth. [MTA], 44 AD3d 629, 629; Zapata v County of Suffolk, 23 AD3d 553, 554; Matter of Pelekanos v City of New York, 264 AD2d 446, 447; Arcila v Incorporated Vil. of Freeport, 231 AD2d 660, 661). Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was to dismiss the amended complaint for failure to comply with General Municipal Law § 50-h.

The parties' remaining contentions either are without merit or need not be reached in light of our determination.

RIVERA, J.P., AUSTIN, SGROI and BARROS, JJ., concur.

2013-09563 DECISION & ORDER ON MOTION

Paul Palmieri, appellant, v Town of Babylon, et al.,

respondents.

(Index No. 37542/09)

Motion by the respondents, inter alia, to strike Point VI of the appellant's reply brief on an appeal from a judgment of the Supreme Court, Suffolk County, dated August 8, 2013. By decision and order on motion of this Court dated October 30, 2015, as amended March 30, 2016, that branch of the motion which is to strike Point VI of the appellant's reply brief was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeal, it is

ORDERED that the branch of the motion which is to strike Point VI of the appellant's reply brief is granted.

RIVERA, J.P., AUSTIN, SGROI and BARROS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court