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Legal Malpractice - Appellate Practice - Restoration of Case Dismissed for Prior Attorney's Failure to Prosecute

270 A.D.2d 396; 704 N.Y.S.2d 892;

2000 N.Y. App. Div. LEXIS 2955, *

Ralph Lieber, Appellant, v. Peter Vitelli, Respondent.

1999-02363

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT

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

January 13, 2000, Argued

March 20, 2000, Decided

PRIOR HISTORY: [*1]

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.

COUNSEL: Brophy & Laub, White Plains, N.Y. (Joseph J. Brophy of counsel), for appellant.

Voute, Lohrfink, Magro & Collins, White Plains, N.Y. (Stephen J. Riebling, Jr., of counsel), for respondent.

JUDGES: Santucci, J. P., Joy, S. Miller and H. Miller, JJ., concur.

OPINION: 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 [*2] 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.