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June 26, 2017

Should an entity grants a request to postpone an administrative hearing, it is required take appropriate action to reschedule the hearing


Should an entity grants a request to postpone an administrative hearing, it is required take appropriate action to reschedule the hearing
Doe v Onondaga County, 2017 NY Slip Op 04697, Appellate Division, Fourth Department

Jane Doe initiated an Article 78 action against Onondaga County and the Onondaga County Department of Social Services [Onondaga County].

Onondaga County asked Supreme Court to dismiss Doe's complaint contending Doe failed to comply with the provisions set out General Municipal Law §50-h as she failed to comply with its demand for a hearing pursuant to General Municipal Law §50-h.

Supreme Court denied Onondaga County's motion and the County appealed.

Citing Legal Servs. for the Elderly, Disabled, or Disadvantaged of W. N.Y., Inc. v County of Erie, 125 AD3d 1321, the Appellate Division said that "It is well settled that a plaintiff who has not complied with [the requirements set out in] General Municipal Law §50-h(5) is precluded from maintaining an action against a [county]."

However, §50-h(5) also provides, as here relevant, that "[t]he action, however, may not be commenced until compliance with the demand for examination if the claimant fails to appear at the hearing or requests an adjournment or postponement beyond the ninety day period. If the claimant requests an adjournment or postponement beyond the ninety day period, the city, county, town, village, fire district or school district shall reschedule the hearing for the earliest possible date available."

The Appellate Division pointed out that Doe was in compliance with the statute as after Onondaga County demanded a General Municipal Law §50-h(5) hearing, Doe requested and was granted an adjournment of that hearing.

Contrary to the Onondaga County's contention, the Appellate Division said that it was incumbent upon the County to reschedule the adjourned hearing. Accordingly Supreme Court correctly denied Onondaga County's motion to dismiss Doe's petition.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2017/2017_04697.htm


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