ELLIMAN v. Robert Model, et al., Defendants-Appellants. (1999)

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 N.Y.2d 727, 384 N.Y.S.2d 769, 349 N.E.2d 869;  Rapid Rehabilitation Corp. v. City of New York, 63 A.D.2d 901, 406 N.Y.S.2d 690;  cf., Bardere v. Zafir, 63 N.Y.2d 850, 482 N.Y.S.2d 261, 472 N.E.2d 37).

MEMORANDUM DECISION.