D'Antonio v. Fitzgerald

11 A.D.2d 804, 204 N.Y.S.2d 908, 1960 N.Y. App. Div. LEXIS 8468

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 13, 1960
• Status: Published

Opinion

— In an action to recover damages for injuries to person and property, defendant appeals from an order of the Supreme Court, Kings County, entered February 24, 1960, which grants plaintiffs’ motion to direct defendant to accept service of plaintiffs’ late bill of particulars, and which in effect opens plaintiffs’ default in having failed to serve said bill by May 9, 1959, pursuant to an order of said court entered by consent of the parties on March 6, 1959. Under the latter order plaintiffs were precluded from offering evidence upon the trial with respect to matters as to which a bill of particulars had been demanded, unless plaintiffs served the bill within 60 days after service of a copy of said order — a copy having been duly served on March 10, 1959. Order dated February 24, 1960 reversed, with $10 costs and disbursements, and motion denied, with $10 costs, without prejudice to renewal upon proper affidavits reciting facts showing a meritorious cause of action and a meritorious excuse for plaintiffs’ failure to serve the bill of particulars in accordance, with the terms of the preclusion order of March 6, 1959. The present record [furnishes] a wholly inadequate basis for the exercise of the court’s discretion in opening plaintiffs’ default under the preclusion order. No facts are set forth establishing an excusable default for plaintiffs’ inordinate delay in serving the bill of particulars. Nor are any facts set forth showing the merits' of the action. Nolan, P. J., Beldock, Christ and Brennan, JJ., concur.