Gerr v. Weissberg

62 A.D.2d 931, 403 N.Y.S.2d 738, 1978 N.Y. App. Div. LEXIS 10934

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 6, 1978
• Status: Published

Opinion

Order of the Supreme Court, New York County, entered February 11, 1977, insofar as the order conditionally denied defendant-appellant’s motion for summary judgment, unanimously reversed, on the law, and the motion for summary judgment dismissing the complaint is granted, without costs or disbursements. We find that Special Term abused its discretion in denying defendant’s motion for summary judgment on condition that plaintiffs serve a verified bill of particulars in compliance with defendant’s demand (see Le Frois Foods Corp. v Aetna Ins. Co., 47 AD2d 994). The order entered May 28, 1974 precluded particulars of plaintiffs’ claim unless plaintiffs submitted a fully responsive bill of particulars within 20 days from service of a copy of said order with notice of entry (CPLR 3042, subd [d]). Two and a half years elapsed from May 28, 1974 until defendant in February, 1977 moved for summary judgment, during which period plaintiffs did not submit the required bill of particulars or move to be relieved of the preclusion order. Nor have they offered any valid excuse for their failure to comply with that order (see Le Frois Foods Corp. v Aetna Ins. Co., supra). Plaintiffs claim that they were not served with a copy of the order of preclusion with notice of entry is without merit. The record discloses that on or about July 2 or 3, 1974 plaintiffs served defendant with a copy of said order with notice of entry. It is apparent therefore that plaintiffs had notice of such order since that date. In any event, inasmuch as plaintiffs did not raise that claim at Special Term, it is deemed to have been waived (Farr v Newman, 14 NY2d 183, 187-188). Concur—Murphy, P. J., Birns, Fein, Markewich and Sullivan, JJ.