
    Molly Hantverk, Plaintiff, v. City of New York et al., Defendants.
    Supreme Court, Special Term, Queens County,
    November 3, 1961.
    
      
      Hamilton & Solomon for plaintiff. Tropp & Steinboch for Snrf Leasing Corp., defendant. Charles H. Tenney, Corporation Counsel, for City of New York, defendant.
   Jambs J. Conroy, J.

This is a motion by the plaintiff to ‘ ‘ reinstate ’ ’ the summons and complaint in the action.

The action was commenced by the plaintiff on August 24, 1960, prior to the completion of the examination of the plaintiff by the defendant city pursuant to section 50-h of the General Municipal Law. On the date of the examination the plaintiff signed a stipulation of discontinuance which was demanded by the defendant city prior to the commencement of the examination. The basis for this demand was subdivision 5 of the aforesaid section 50-h, which provides that no action shall be commenced against a municipal corporation after a demand for examination has been served until the claimant has duly complied with such demand. Counsel for the defendant city, at that time, informed the plaintiff that she could institute a new action after the completion of the examination.

The plaintiff has not, however, served a new summons and complaint. She has waited until after the time for the commencement of an action provided by section 50-i of the General Municipal Law has apparently expired and now seeks, by motion, to reinstate the original action.

Even if the court were to consider this a motion to vacate the discontinuance of the action, the plaintiff offers no basis for such relief. While the court cannot approve of the practice of the defendant city in forcing a discontinuance at the time of the hearing, instead of making a proper motion for dismissal based on the aforesaid subdivision 5 of section 50-h, the court cannot use this as a basis for vacating the discontinuance of the action. Moreover, even if the court were to vacate the discontinuance, the complaint would still be subject to a motion to dismiss pursuant to the aforesaid subdivision 5 of section 50-h.

The motion is, accordingly, denied. This disposition is not intended to prejudice the plaintiff’s right to institute a new action by the service of a summons and complaint, subject, of course, to all of the rights and defenses provided by law and especially section 50 of the General Municipal Law.  