Opinion
8110N.
March 16, 2006.
Order, Supreme Court, Bronx County (Stanley Green, J.), entered January 5, 2005, which denied defendant's motion to dismiss the complaint as abandoned, and granted that portion of plaintiffs' cross motion to restore the matter to the calendar while denying that portion seeking leave to amend the bill of particulars, unanimously affirmed, without costs.
William D. Fireman, P.C., New York, for appellants-respondents.
Eustace Marquez, White Plains (Mark A. Solomon of counsel), for Trinity Morris Corp., respondent-appellant.
Oshman Mirisola, LLP, New York (David L. Kremen of counsel), for Marcato Elevator Company, Inc., respondent-appellant.
Before: Andrias, J.P., Saxe, Friedman, Marlow and Sullivan, JJ., concur.
The cross motion to amend the bill of particulars lacked both a showing of merit ( Posner v. Central Synagogue, 202 AD2d 284, lv dismissed 83 NY2d 953) and an adequate excuse for the delay in raising new categories of injuries ( Spielberger v. Giambalvo, 207 AD2d 877). The motion to dismiss the complaint pursuant to CPLR 3404 was properly denied in view of plaintiffs' meritorious cause of action, their reasonable excuse for the delay in moving to restore the case to the calendar, the absence of a showing of intent to abandon the action, and a lack of prejudice to defendant ( Werner v. Tiffany Co., 291 AD2d 305).