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Przybyla v. County of Suffolk

United States District Court, E.D. New York

March 3, 2017

TARA PRZYBYLA, Plaintiff,
v.
COUNTY OF SUFFOLK, SUFFOLK COUNTY POLICE OFFICER BRIAN MCMURRAY, SUFFOLK COUNTY POLICE OFFICER ROBERT MUDZINSKI, SUFFOLK COUNTY POLICE OFFICER PETER ERVOLINA and SUFFOLK COUNTY POLICE OFFICER JOHN DOES 1-4 in their official and individual capacities, Defendants.

          MEMORANDUM AND ORDER

          ANNE Y. SHIELDS United States Magistrate Judge

         Plaintiff 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.

         Presently 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.

         BACKGROUND

         Plaintiff 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 officers.

         On 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.

         On November 20, 2009, Plaintiff filed the instant action. See Compl., DE [1]. On March 16, 2010, the parties jointly requested the matter be stayed pending the conclusion of the underlying criminal proceedings. See DE [5]. 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 [20], and on January 15, 2013, the stay was lifted and a discovery schedule was entered. See DE [22].

         Trial commenced on February 27, 2017. See DE [63]. 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.

         DISCUSSION

         I. Legal Standard

         As a 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).

         II. The ...


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