Gadsden v. New York City Transit Authority

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Eartnow, J.), dated December 13, 2005, which denied its motion pursuant to CFLR 3216 to dismiss the complaint for failure to prosecute.

Ordered that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in *659excusing the plaintiffs failure to comply with a valid 90-day notice pursuant to CPLR 3216 (b) (3) (see Di Simone v Good Samaritan Hosp., 100 NY2d 632 633 [2003]; Baezkowski v Collins Constr. Co., 89 NY2d 499, 504-505 [1997]). The…