Tyrell v. City of N.Y.

• Decision Date: 21 December 2010
• Citation: 79 A.D.3d 596,912 N.Y.S.2d 880
• Parties: Michael TYRELL, Plaintiff-Respondent, v. CITY OF NEW YORK, Defendant, New York City Health and Hospitals Corporation, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

912 N.Y.S.2d 880

79 A.D.3d 596

Michael TYRELL, Plaintiff-Respondent,

v.CITY OF NEW YORK, Defendant, New York City Health and Hospitals Corporation, Defendant-Appellant.

Supreme Court, Appellate Division, First Department, New York.

Dec. 21, 2010.

Michael A. Cardozo, Corporation Counsel, New York (Norman Corenthal of counsel), for appellant.

Adam M. Thompson, New York, for respondent.

Order, Supreme Court, New York County (Douglas E. McKeon, J.), entered January 22, 2009, which denied defendant New York City Health and Hospital Corporation's motion to dismiss the complaint pursuant to CPLR 3216(e) for failure to prosecute, unanimously affirmed, without costs.

Plaintiff's delay in serving and filing the note of issue was minimal, his explanation for it was adequate, i.e., that there was a misunderstanding between counsel regarding whether defendant would be satisfied with a bill of particulars if it was provided within the 90-day period, and no prejudice to defendant was alleged to have resulted from the delay. Considering the totality of the circumstances, we agree with the motion court that plaintiff should be permitted to proceed ( see Espinoza v. 373-381 Park Ave. S., LLC, 68 A.D.3d 532, 891 N.Y.S.2d 355 [2009]; Davis v. Goodsell, 6 A.D.3d 382, 774 N.Y.S.2d 568 [2004] ).

ANDRIAS, J.P., SAXE, MOSKOWITZ, ACOSTA, FREEDMAN, JJ., concur.