Elliman v. Elliman

259 A.D.2d 341, 687 N.Y.S.2d 31, 1999 N.Y. App. Div. LEXIS 2758

Opinion

Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered on or about October 23, 1997, which, insofar as appealed from, granted plaintiffs’ motion for leave to replead as against defendants-appellants, unanimously affirmed, without costs.

Leave to replead was properly granted upon an affidavit by a person with knowledge of facts supporting a proposed amended complaint that cured the pleading deficiencies of the original complaint (CPLR 3211 [e]). Such relief is not necessarily precluded by plaintiffs’ failure to have requested it in their opposition to defendants’ prior motion to dismiss, as required by CPLR 3211 (e); such noncompliance may be excused as a matter of discretion (see, Sanders v Schiffer, 39 NY2d 727; Rapid Rehabilitation Corp. v City of New York, 63 AD2d 901; cf., Bardere v Zafir, 63 NY2d 850). Concur — Ellerin, P. J., Nardelli, Williams and Rubin, JJ.