Opinion
Argued January 13, 2000
March 23, 2000
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.
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.
FRED T. SANTUCCI, J.P., DANIEL W. JOY, SONDRA MILLER, HOWARD MILLER, JJ.
DECISION ORDER
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 A.D.2d 128 ;Iazzetta v. Cicenzi, 243 A.D.2d 540; Ware v. Porter, 227 A.D.2d 214 ).
That portion of the plaintiff's motion which sought leave to serve an amended complaint in the form 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 N.Y.2d 400 ;Bobrowksy v. Lexus, 215 A.D.2d 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.