in which plaintiff would be deposed on December 14, 1992. Plaintiff's counsel still insists that this deposition should satisfy the requirements of both § 50-h and the Federal Rules, but he agrees to produce plaintiff twice if either Magistrate Jordan or this Court so require.
This Court agrees with plaintiff to the extent that a single deposition should generally satisfy the requirements of both § 50-h and the Federal Rules. Moreover, it would have been "gentleman-like" behavior for defense counsel to have granted plaintiff a fifth adjournment so that this Court could determine whether plaintiff would have to appear for one deposition or for two. Nevertheless, there is no requirement that counsel must behave in a "gentleman-like" manner; there is no dispute that defendants did not agree to adjourn the August 17, 1992 deposition; and there is no dispute that the one year and 90 day Statute of Limitations contained in General Municipal Law § 50-i expired long before the December 14, 1992 deposition.
In Lowinger, the court dismissed an action in which the plaintiff failed to appear for a scheduled § 50-h hearing and "'inadvertently failed to reschedule a new hearing date' until after the Stature of Limitations . . . had run. When counsel realized his error, he attempted to reschedule the hearing, but the city refused." Lowinger, 407 N.Y.S.2d at 902. The court noted that "'the period within which actions and special proceedings against municipalities are required to be brought is not intended to be tolled or extended by reasons of [§ 50-h].'" Id. (citing McKinney's Session Laws of N.Y., 1960, p. 289).
Similarly, in Best, the court dismissed a complaint where the plaintiff had received four adjournments regarding her § 50-h deposition and then failed to show up for the last scheduled date. The court noted that even if she had a valid reason for not appearing, she failed to seek a rescheduled date prior to the running of the statute of limitations. "Certainly it was not, under the circumstances, defendant's responsibility to endeavor to set up another date for the examination." Best, 468 N.Y.S.2d at 8. See also Restivo, 444 N.Y.S.2d at 190 (defendants' consent to numerous § 50-h adjournments does not establish a waiver of defendants' right to examine plaintiff prior to the commencement of the action).
Following the reasoning of the above-cited cases, this Court finds that the Statute of Limitations having expired on the state claims, it is now too late for plaintiff to seek an Order from this Court to schedule a single deposition to satisfy the requirements of both § 50-h and the Federal Rules. Moreover, because plaintiff failed to appear for the last scheduled § 50-h examination and failed to reschedule a § 50-h examination prior to the running of the statute of limitations, defendants' motion to dismiss the state claims is granted.
LEONARD D. WEXLER
UNITED STATES DISTRICT JUDGE
Dated: Hauppauge, New York
January 19, 1993