Briscuso v. Edison Parking Corp.

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

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 21, 1995
• Status: Published

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.