Tyrell v. City of New York

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.

Plaintiffs 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 Good-sell, 6 AD3d 382 [2004]). Concur — Andrias, J.P., Saxe, Moskowitz, Acosta and Freedman, JJ.