A & W Electric of Miami, Inc. v. Abraira

567 So. 2d 36, 1990 WL 138402

• Court: District Court of Appeal of Florida
• Decided: September 25, 1990
• Docket: 90-603
• Status: Published

Opinion

567 So.2d 36 (1990)

A & W ELECTRIC OF MIAMI, INC., and William Riggenbach, Individually and As Shareholder and Director of a & W Electric of Miami, Inc., Appellants,
v.
Steve ABRAIRA, Individually and As Officer and Director of a & W Electric of Miami, Inc., Appellee.

No. 90-603.

District Court of Appeal of Florida, Third District.

September 25, 1990.

Gerald V. Walsh, Coral Springs, for appellants.

Stinson, Lyons, Gerlin & Bustamante and Leonor M. Lagomasino, Miami, for appellee.

Before HUBBART, FERGUSON and LEVY, JJ.

PER CURIAM.

The plaintiff's double bypass heart surgery and subsequent period of rehabilitation was a sufficient excuse for failure to prosecute his claim within one year. Physical disability of a plaintiff justifies a failure to bring a case to trial and may suffice as a good defense to a motion to dismiss for failure to prosecute, even where no continuance was sought prior to the expiration of the one-year period of activity contemplated by Florida Rule of Civil Procedure 1.420(e). Schlakman v. Helliwell, Melrose & DeWolf, 519 So.2d 14 (Fla. 3d DCA 1987); Douglas v. Eiriksson, 347 So.2d 1074 (Fla. 1st DCA 1977). See also Chrysler Leasing Corp. v. Passacantilli, 259 So.2d 1 (Fla. 1972); Barnes v. Ross, 386 So.2d 812 (Fla. 3d DCA 1980). Owing to the severity of the plaintiff's illness which rendered him unable to participate in discovery proceedings, the dismissal for lack of prosecution was an abuse of discretion.

Reversed and remanded.