Briscuso v. Edison Parking Corp.

222 A.D.2d 328, 635 N.Y.S.2d 615, 1995 N.Y. App. Div. LEXIS 13325

Opinion

—Order, Supreme Court, New York County (Carol Arber, J.), entered on or about May 2, 1995, which granted defendants’ motion for preclusion unless plaintiff served a bill of particulars within 60 days of the court’s order, modified, on the law, to make preclusion unconditional, and otherwise affirmed, without costs.

There being a conflict between the court’s decision, which grants preclusion unconditionally, and its order, which grants preclusion conditionally, the decision controls, and the order should be resettled accordingly (DiProspero v Ford Motor Co., 105 AD2d 479, 480). Concur — Rosenberger, J. P., Rubin, Asch and Mazzarelli, JJ.

Kupferman, J., dissents in a memorandum as follows: I would remand to the IAS Judge.

The IAS Judge obviously had second thoughts on the matter and should be the one to make the choice.