Fernandez v. Tsoumpas Bros.

140 A.D.2d 257, 528 N.Y.S.2d 327, 1988 N.Y. App. Div. LEXIS 5484

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 24, 1988
• Status: Published

Opinion

In the circumstances presented, the complaint should not have been dismissed on the basis of plaintiffs’ noncompliance with the conditional order of preclusion, which had been granted on default, for failure to serve a bill of particulars. The complaint, prima facie, has merit and the indigent plaintiffs, quite obviously, have never abandoned their claims. It is apparent that their default leading to the preclusion order and any delay thereafter in responding to the demand for a bill of particulars was due to the lack of diligence of their former counsel, Candace C. Carpenter. Nor have defendants been prejudiced by any delay in the furnishing of a bill of particulars. Accordingly, we reinstate the complaint and grant the cross motion to vacate the order of preclusion.

We note in passing that the subsumed order of September 18, 1987 denied that part of the cross motion which sought leave to amend the complaint. It is not clear to us that the amendment sought is required. In any event, in light of their prior default, plaintiffs would be well advised to furnish the particulars already sought before enlarging the scope of their complaint. Concur — Sullivan, J. P., Carro, Asch, Kassal and Wallach, JJ.