United States District Court, E.D. New York
MEMORANDUM AND ORDER
Y. SHIELDS United States Magistrate Judge
Tara Przybola (“Plaintiff”) commenced this action
against defendants County of Suffolk (the
“County”), Suffolk County Police Officer Brian
McMurray (“Off. McMurray”), Suffolk County Police
Officer Robert Mudzinski (“Off. Mudzinski”),
Suffolk County Police Officer Peter Ervolina (“Off.
Ervolina”) (collectively “Individual
Defendants”), and Suffolk County Police Officer John
Does 1-4 in their official and individual capacities
(collectively “Defendants”), alleging, inter
alia violations, of her constitutional rights pursuant
to 42 U.S.C. § 1983 and state law claims of battery and
intentional infliction of emotional distress.
before this Court is the Defendants' motion to dismiss
Plaintiff's state law claims for failure to comply with
General Municipal Law § 50-h. For the reasons set forth
below, the motion to dismiss the state law claims is GRANTED.
alleges that on August 23, 2008, during a traffic stop
resulting in her arrest, she was subjected to the use of
excessive force at the hands of the Defendant police
November 18, 2008, Plaintiff filed a Notice of Claim on
Defendants. On October 15, 2009, a hearing under New York
General Municipal Law § 50-h (“50-h
Hearing”) was held. At the 50-h hearing, Plaintiff
invoked her Fifth Amendment privilege against
self-incrimination. In particular, she refused to answer any
questions propounded by the County regarding the August 23,
2008 incident due to the pending criminal matter against her
at the time in the Suffolk County District Court.
See 50-h Hearing Tr. 34:18-36:21; 40:19-41:15;
44:13-45:8; 53:3-54:17; 55:23-56:7. At Plaintiff's
initial invocation of her Fifth Amendment privilege against
self-incrimination, her counsel stated the following:
At this point in time my client intends to assert her Fifth
Amendment privilege against self incrimination and will not
answer any questions regarding the August 23, 2008 incident.
However, it is this office's position and my client's
position that with the information she has provided thus far
that the County's Attorney's Office is in the
position to properly defend and investigate the case, This
office is not adverse to a continuation of this proceeding
once the criminal matter is terminated and we will notify
your office immediately upon termination of this criminal
action for the continuation of the 50H.
Id. at 36:4-21.
November 20, 2009, Plaintiff filed the instant action.
See Compl., DE . On March 16, 2010, the parties
jointly requested the matter be stayed pending the conclusion
of the underlying criminal proceedings. See DE .
On March 17, 2010, the stay was granted. On January 3, 2013,
Plaintiff's counsel notified this Court that the criminal
proceedings had concluded, see DE , and on
January 15, 2013, the stay was lifted and a discovery
schedule was entered. See DE .
commenced on February 27, 2017. See DE . Upon
the conclusion of Plaintiff's case in chief, the
Defendants moved to dismiss Plaintiff's state law claims
for failure to comply with the requirements of Section 50-h
of the General Municipal Law, namely Plaintiff's failure
to reschedule the 50-h Hearing upon the conclusion of
Plaintiff's criminal proceedings.
condition precedent to bringing a state law tort claim
against a municipality a plaintiff must file a Notice of
Claim within ninety days after her claim accrues.
See N.Y. Gen. Mun. L. § 50-e. After receiving
the Notice of Claim, the municipality may demand a 50-h
Hearing to examine “the claimant relative to the
occurrence and extent of the injuries or damages for which
claim is made.” Id.§ 50-h(1). “[I]f
the claimant fails to appear at the hearing or request an
adjournment or postponement, ” the state law claims
cannot proceed against the municipality. Id. §
50-h(5). Notice of claim requirements are construed
“strictly” and “[f]ailure to comply with
these requirements ordinarily requires dismissal for failure
to state a cause of action.” Hardy v. New York City
Health & Hosp. Corp., 164 F.3d 789, 793-94 (2d Cir.
1998); Cincotta v. Hempstead Sch. Dist., 2016 WL
4536873 *19 (E.D.N.Y. 2016).