Lebron v. New York City Housing Authority

258 A.D.2d 541, 685 N.Y.S.2d 27

Opinion

—Order, Supreme Court, Bronx County (Stanley Green, J.), entered April 10, 1998, which deemed plaintiffs motion to restore the action to the trial calendar as one to vacate the dismissal of the action pursuant to CPLR 3404, and granted the motion, unanimously affirmed, without costs.

The motion to restore was properly treated as one to vacate a CPLR 3404 automatic dismissal (see, Syndicate Bldg. Corp. v Lorber, 193 AD2d 506, 507; Kassover v Diamonds Run, 193 AD2d 515). The motion was properly granted upon a showing of merit made in the verified complaint (see, Salch v Paratore, 60 NY2d 851; Lisojo v Phillip, 188 AD2d 369), a reasonable excuse for the 15 months it took plaintiff to serve the amended bill of particulars anticipated in the parties’ stipulation, including extensive medical treatment during that period and difficulties in procuring medical records pertaining to that treatment, and an absence of prejudice to defendant attributable to the delay (see, Kassover v Diamonds Run, supra; Solow v Stuart, 223 AD2d 458). We note in the latter regard that the stipulation did not limit the time plaintiff had to serve an amended bill of particulars, and that it does not appear that plaintiffs condition had stabilized long before he served his amended bill of particulars. Concur — Williams, J. P., Lerner, Rubin and Saxe, JJ.