Jesse Scott, Individually and as Administrator of the Estate of Thelma S. Scott, Deceased, Respondent, v. Geneva Brickhouse et al., Defendants, and Earl Holder, Appellant

Jesse Scott, Individually and as Administrator of the Estate of Thelma S. Scott, Deceased, Respondent, v Geneva Brickhouse et al., Defendants, and Earl Holder, Appellant. [675 NYS2d 542] [MAJORITY] —In an action to recover damages for wrongful death, the defendant Earl Holder appeals from an order of the Supreme Court, Kings County (Dowd, J.), dated May 8, 1997, which granted the plaintiffs’ motion to renew their prior motion to vacate the automatic dismissal pursuant to CPLR 3404, and, upon renewal, granted the motion and conditionally restored this matter to the trial calendar. Ordered that the order is affirmed, with costs. The Supreme Court did not improvidently exercise its discretion in granting renewal. The plaintiffs offered an affidavit of merit and an acceptable excuse for failing to previously submit proof of certain facts. Additionally, the equities of this matter, as well as the interests of justice, were properly served by permitting renewal (see, Petito v Verrazano Contr. Co., 246 AD2d 636; Karlin v Bridges, 172 AD2d 644). The appellant’s remaining contentions are without merit. O’Brien, J. P., Pizzuto, Joy and Florio, JJ., concur.