Abbinanti v. Baisch

41 A.D.2d 693, 342 N.Y.S.2d 506, 1973 N.Y. App. Div. LEXIS 5062

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 23, 1973
• Status: Published

Opinion

Order unanimously reversed, without costs, and motion denied. Memorandum: The trial court granted defendant Joseph Abbinanti’s motion to compel appellants to accept a bill of particulars more than one year after the preclusion- order was entered and over one and one-half years after the demand for particulars was made. The only excuse offered by respondent for this delay was a law office failure in that he thought that he had served the husband and wife’s bill of particulars together. In fact, only - the wife’s bill had been sent. Respondent’s attorney was served with a 20-day preclusion order in the husband’s action after he had served the wife’s bill of particulars and this should have alerted him to the problem. We have repeatedly held that law office failures do not excuse a default. (RVA Trucking v. Lane Constr. Corp., 35 A D 2d 773; Gonsa v. Licitra, 6 A D 2d 755.) Furthermore, there is no proper affidavit of merits accompanying the motion papers. The order of Special Term was an improvident exercise of discretion. (Appeal from order of Erie Special Term directing acceptance of bill of particulars.) Present — Goldman, P. J., Witmer, Moule, Cardamone and Simons, JJ.