Elliman v. Elliman — 259 A.D.2d 341

Majority

p. 341

Christopher J. Elliman, Individually and as Trustees for the Underhill Charitable Trust, et al., Respondents, v David D. Elliman, Individually and as Trustee for the Underhill Charitable Trust, et al., Defendants, and Robert Model et al., Appellants.

[687 NYS2d 31]

Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered on or about October 23, 1997, which, insofar as appealed from, granted plaintiffs’ motion for leave to replead as against defendants-appellants, unanimously affirmed, without costs.

Leave to replead was properly granted upon an affidavit by a person with knowledge of facts supporting a proposed amended complaint that cured the pleading deficiencies of the original complaint (CPLR 3211 [e]). Such relief is not necessarily precluded by plaintiffs’ failure to have requested it in their opposition to defendants’ prior motion to dismiss, as required by CPLR 3211 (e); such noncompliance may be excused as a matter of discretion (see, Sanders v Schiffer, 39 NY2d 727 ; Rapid Rehabilitation Corp. v City of New York, 63 AD2d 901 ; cf., Bardere v Zafir, 63 NY2d 850 ). Concur — Ellerin, P. J., Nardelli, Williams and Rubin, JJ.

Cases cited

Sanders v. Schiffer 39 NY2d 727 N.Y. 1976-04-06 p. 341
Bardere v. Zafir 63 NY2d 850 N.Y. 1984-10-11 p. 341