Opinion
No. 90-603.
September 25, 1990.
Appeal from the Circuit Court, Dade County, Murray Goldman, J.
Gerald V. Walsh, Coral Springs, for appellants.
Stinson, Lyons, Gerlin Bustamante and Leonor M. Lagomasino, Miami, for appellee.
Before HUBBART, FERGUSON and LEVY, JJ.
The plaintiff's double bypass heart surgery and subsequent period of rehabilitation was a sufficient excuse for failure to prosecute his claim within one year. Physical disability of a plaintiff justifies a failure to bring a case to trial and may suffice as a good defense to a motion to dismiss for failure to prosecute, even where no continuance was sought prior to the expiration of the one-year period of activity contemplated by Florida Rule of Civil Procedure 1.420(e). Schlakman v. Helliwell, Melrose DeWolf, 519 So.2d 14 (Fla. 3d DCA 1987); Douglas v. Eiriksson, 347 So.2d 1074 (Fla. 1st DCA 1977). See also Chrysler Leasing Corp. v. Passacantilli, 259 So.2d 1 (Fla. 1972); Barnes v. Ross, 386 So.2d 812 (Fla. 3d DCA 1980). Owing to the severity of the plaintiff's illness which rendered him unable to participate in discovery proceedings, the dismissal for lack of prosecution was an abuse of discretion.
Reversed and remanded.