Lieber v. Vitelli

270 A.D.2d 396, 704 N.Y.S.2d 892, 2000 N.Y. App. Div. LEXIS 2955

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 20, 2000
• Status: Published

Opinion

—In an action to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Westchester County (Nastasi, J.), entered March 1, 1999, which denied his motion to vacate the dismissal of the action and for leave to serve an amended complaint.

Ordered that the order is reversed, on the law and as a matter of discretion, with costs, the motion is granted, the complaint is reinstated, and the plaintiff is granted leave to serve an amended complaint in the form annexed to his moving papers.

The Supreme Court erred in treating the plaintiff’s motion to vacate the dismissal of his action as one for reargument or renewal, since no prior motion had been made (see, CPLR 2221 [a]). Furthermore, under the circumstances of this case, the plaintiff demonstrated the criteria necessary to warrant vacatur of the dismissal pursuant to CPLR 3404 (see generally, Almanzar v Rye Ridge Realty Co., 249 AD2d 128; Iazzetta v Vicenzi, 243 AD2d 540; Ware v Porter, 227 AD2d 214).

That portion of the plaintiff’s motion which sought leave to serve an amended complaint in the form annexed to his moving papers is also granted since the defendant failed to demonstrate that he will be prejudiced thereby (see, CPLR 3025 [b]; Murray v City of New York, 43 NY2d 400; Bobrowksy v Lexus, 215 AD2d 424).

In light of our determination, it is unnecessary to reach the plaintiff’s remaining contention. Santucci, J. P., Joy, S. Miller and H. Miller, JJ., concur.