Opinion
June 13, 1978
Order and judgment (two papers), Supreme Court, Bronx County, entered August 2, 1977 and October 18, 1977, respectively, dismissing the causes of action against the City of New York, unanimously modified, on the law, to the extent of directing that the dismissal is without prejudice to the plaintiff's applying at Special Term, within 20 days of publication of this decision in the New York Law Journal, for leave to serve an amended complaint against the City of New York and at the same time to apply to vacate the judgment in the event leave is granted, and otherwise affirmed, without costs or disbursements. We are in agreement with the conclusion reached by Special Term that the papers submitted by the appellant, Rapid Rehabilitation Corp., Inc. (Rapid), fail to show any acts or omissions on the part of the City of New York sufficient to withstand a motion to dismiss the complaint. We further note that there was no request made by Rapid for leave to replead. However, if there are evidentiary facts which would warrant recovery, Rapid should be afforded an opportunity to pursue its remedies and to submit a proposed amended complaint which would justify the granting of leave to replead (CPLR 3211, subd [e]; Sanders v Schiffer, 39 N.Y.2d 727, 729).
Concur — Lupiano, J.P., Silverman, Lane, Sandler and Sullivan, JJ.