Tyrell v City of New York

Tyrell v City of New York 2010 NY Slip Op 09389 [79 AD3d 596] December 21, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 16, 2011

Michael Tyrell, Respondent,
v
City of New York, Defendant, and New York City Health and Hospitals Corporation, Appellant.

—[*1] 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 AD3d 532 [2009]; Davis v Goodsell, 6 AD3d 382 [2004]). Concur—Andrias, J.P., Saxe, Moskowitz, Acosta and Freedman, JJ.