Coloccia v. Coloccia

222 A.D.2d 643, 636 N.Y.S.2d 109, 1995 N.Y. App. Div. LEXIS 13951

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 29, 1995
• Status: Published

Opinion

—In an action for divorce and ancillary relief, the defendant appeals from an order of the Supreme Court, Suffolk County (Prudenti, J.), dated December 23, 1994, which denied his motion to preclude the plaintiff from offering evidence at trial.

Ordered that the order is modified by adding to the provision thereof denying the motion to preclude the plaintiff from offering evidence at trial the words "on condition that the plaintiffs attorney pay to the defendant the sum of $750 costs”; as so modified, the order is affirmed, without costs or disbursements.

The plaintiff established a reasonable excuse for her delay in serving a bill of particulars, and the verified bill demonstrates the merits of the action. Accordingly, it was not an improvident exercise of discretion to deny the defendant’s motion to preclude the plaintiff from offering evidence at trial (see, Elliot v New York City Hous. Auth., 187 AD2d 410; Darrell v Yurchuk, 174 AD2d 557). However, under the circumstances, the denial of the defendant’s motion should have been conditioned upon an appropriate payment by the plaintiff’s attorney to the defendant to help offset the expenses incurred by the defendant in moving to preclude the plaintiff from offering evidence at trial. Balletta, J. P., Rosenblatt, Pizzuto, Joy and Altman, JJ., concur.