LEBRON v. NEW YORK CITY HOUSING AUTHORITY (1999)

Order, Supreme Court, Bronx County (Stanley Green, J.), entered April 10, 1998, which deemed plaintiff's 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 A.D.2d 506, 507, 597 N.Y.S.2d 372;  Kassover v. Diamonds Run, 193 A.D.2d 515, 597 N.Y.S.2d 408).   The motion was properly granted upon a showing of merit made in the verified complaint (see, Salch v. Paratore, 60 N.Y.2d 851, 470 N.Y.S.2d 138, 458 N.E.2d 379;  Lisojo v. Phillip, 188 A.D.2d 369, 591 N.Y.S.2d 40), 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 A.D.2d 458, 637 N.Y.S.2d 68).   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 plaintiff's condition had stabilized long before he served his amended bill of particulars.

MEMORANDUM DECISION.