Gravius v. County of Erie

Fahey and Gorski, JJ.

(dissenting). We respectfully dissent and would reverse the order granting defendant’s motion to dismiss the complaint and reinstate the complaint. “It is well settled that a plaintiff who has not complied with General Municipal Law § 50-h (1) is precluded from maintaining an action against a municipality” (McDaniel v City of Buffalo, 291 AD2d 826 [2002]). However, “compliance with [that statute] may be excused in ‘exceptional circumstances’ ” (id.) and, in our view, such exceptional circumstances are present in this case.

Here, plaintiff was prevented from attending an…