Barone v. Gangi

34 A.D.2d 889, 312 N.Y.S.2d 153

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 21, 1970
• Docket: Appeal No. 1
• Status: Published

Opinion

Order unanimously reversed, without costs, and motion granted. Memorandum: In the absence of exceptional and extraordinary circumstances, we consider it an abuse of discretion to grant relief from a preclusion order. (Gonsa v. Licitra, 6 A D 2d 755; Clements v. Peters, 33 A D 2d 1096.) While we are not departing from that policy, we believe that under the particular circumstances present here, the plaintiff’s motion to vacate should have been granted. 'There is no apparent reason in the record why the court in the first instance granted an absolute, rather than the usual conditional order of preclusion except the plaintiff’s failure to appear on the return date of the motion. Plaintiff’s attorney immediately moved to vacate this order and stated in his moving papers that he did not oppose defendants’ motion for a preclusion order, expecting that plaintiff would be given a limited time within which to serve a bill of particulars. (Appeal from order of Chautauqua Special Term, denying motion to vacate order of preclusion.) Present — Goldman, P. J., Marsh, Witmer, Moule and Henry, JJ.