Burack v. Garrity

12 A.D.2d 951, 212 N.Y.S.2d 1009, 1961 N.Y. App. Div. LEXIS 12743

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 14, 1961
• Status: Published

Opinion

In an action to recover damages allegedly resulting from the premature entry of a default judgment in a prior action in which the defendant Sparber was the plaintiff and the other defendants, Garrity and Collins, were his attorneys, and in which the plaintiffs were the defendants, the plaintiffs have appealed from several orders of the Supreme Court, Westchester County, determining motions with respect to notices of examination before trial, the pleadings and bill of particulars. This court, by a prior decision, permitted plaintiffs “to discontinue their appeals from the orders made upon their motions addressed to the answers, counterclaims and demand for bill of particulars.” Plaintiffs’ remaining appeals, as now limited by their brief, are as follows: (1) from the whole of an order, dated July 29, 1960, which vacated as premature plaintiffs’ notice to examine before trial the defendants Garrity and Sparber, and which stayed plaintiffs from proceeding with such examination before trial until after they shall have served a reply to the counterclaim of defendant Sparber; (2) from so much of an order, dated the same day, which, as a condition to granting plaintiffs an extension of time to serve their bill of particulars, imposed the requirement that plaintiffs shall “withhold service of any papers for an examination before trial of defendants until after service of said bill of particulars;” and (3) from so much of an order, dated August 26, 1960, made on reargument, as adhered to the decisions in the said orders of July 29, 1960. Orders, insofar as appealed from, affirmed, without costs. No opinion. Nolan, P. J., Beldock, Ughetta, Christ and Brennan, JJ., concur.