Bock v. Schiowitz

168 A.D.2d 593, 563 N.Y.S.2d 432, 1990 N.Y. App. Div. LEXIS 15986

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 24, 1990
• Status: Published

Opinion

In an action to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Kings County (Huttner, J.), dated May 3, 1989, which granted the defendant’s motion for summary judgment dismissing the complaint with prejudice.

Ordered that the order is affirmed, with costs.

The plaintiff failed to comply with the defendant’s demand for a bill of particulars. Thereafter the defendant moved to preclude her from offering into evidence at trial any facts specified in the demand for a bill of particulars. The Supreme Court conditionally granted the defendant’s motion unless the plaintiff responded to the demand for a bill of particulars within 30 days after service upon her of a copy of the court’s order with notice of entry. Since a bill of particulars was not served within the time period set forth in the conditional order of preclusion, its terms became absolute (see, Stojowski v Fair Oaks Dev. Corp., 151 AD2d 661; St. Agnes Hosp. v Dengler, 131 AD2d 657). The plaintiff has failed to demonstrate either an acceptable excuse for failing to serve a bill of particulars or the existence of a meritorious cause of action. Since the plaintiff is precluded from introducing any evidence concerning matters demanded by the bill of particulars, she will be unable to prove the essential allegations of her complaint. Thus, summary judgment was properly granted (see, Stojowski v Fair Oaks Dev. Corp., supra; St. Agnes Hosp. v Dengler, supra). Thompson, J. P., Lawrence, Kunzeman and Harwood, JJ., concur.