Abramowitz v. Berger

20 A.D.2d 903, 248 N.Y.S.2d 936, 1964 N.Y. App. Div. LEXIS 4026

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 13, 1964
• Status: Published

Opinion

In an action by numerous plaintiffs to recover money damages by reason of the defendants’ alleged fraud and breach of contract, the defendants Berger, Turkat, the Berger corporation and the BDL Management Corp. appeal from an order of the Supreme Court, Kings County, dated August 6, 1963, which granted plaintiffs’ motion and which: (a) relieved them of their default in the service of a bill of particulars within the time allowed by a prior conditional preclusion order, dated November 28, 1962; and (b) permitted plaintiffs to serve such bill in conformity with the defendants’ original demand for such particulars, as modified by the said conditional preclusion order. Order of August 6, 1963 reversed, without costs, and motion denied, without prejudice to renewal upon proper affidavits reciting (acts showing a meritorious excuse for plaintiffs’ failure to serve the bill of particulars in accordance with the terms of the preclusion order of November 28, 1962. In our opinion, the present record furnishes a wholly inadequate factual basis for the exercise of the court’s discretion in opening plaintiffs’ default under the preclusion order. Although facts are set forth showing the merits of the action, no facts are set forth showing that plaintiffs’ default and inordinate delay in serving the bill of particulars are excusable. Beldock, P. J., Ughetta, Kleinfeld, Hill and Rabin, JJ., concur.