Grace v. Nappa

Appellate Division of the Supreme Court of New York

Grace v. Nappa

53 A.D.2d 659, 384 N.Y.S.2d 872, 1976 N.Y. App. Div. LEXIS 13396

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 21, 1976

StatusPublished

This text of 53 A.D.2d 659 (Grace v. Nappa) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Grace v. Nappa, 53 A.D.2d 659, 384 N.Y.S.2d 872, 1976 N.Y. App. Div. LEXIS 13396 (N.Y. Ct. App. 1976).

Pincite

Opinion

In an action inter alia to recover the amount of a down payment made on a contract for the sale of real property, in which defendant Nappa has counterclaimed, inter alia, for specific performance of the said contract, defendants appeal from an order of the Supreme Court, Nassau County, entered May 20, 1976, which denied their motion for leave to serve a supplemental bill of particulars. Order reversed, with $50 costs and dis[660]*660bursements, and motion granted on condition that (1) the supplemental bill of particulars be served within 10 days of the date of the entry of the order to be made hereon and (2) if, within 10 days of the date of entry of the order to be made hereon, plaintiff serves defendant Nappa with a demand for his examination before trial, the said defendant appears therefor at the time and place set forth in the demand, or at such other time and place as may be agreed upon by the parties; otherwise, order affirmed, without costs or disbursements. Defendants, in their original bill of particulars dated January 7, 1974, stated that a supplemental bill would be provided before trial, updating the amount of expenses allegedly incurred, relating primarily to the mortgage payments and taxes. Plaintiff did not then object to the statement, but refused service of the supplemental bill two weeks prior to trial. Since plaintiff was on notice that such expenses would be updated in a supplemental bill, and as the nature of the expenses are not such as to require extensive investigation, and as defendants would be unduly prejudiced if the supplemental bill is not permitted to be served, the denial of the motion constituted an improvident exercise of discretion. Reliance by plaintiff upon section 675.7 of the rules of this court (22 NYCRR 675.7) is misplaced; the "unusual and unanticipated conditions” referred to therein were in fact anticipated by defendants’ statement in the original bill of particulars announcing that a supplemental bill updating expenses would be later provided. Hopkins, Acting P. J., Martuscello, Margett, Damiani and Hawkins, JJ., concur.

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In an action inter alia to recover the amount of a down payment made on a contract for the sale of real property, in which defendant Nappa has counterclaimed, inter alia, for specific performance of the said contract, defendants appeal from an order of the Supreme Court, Nassau County, entered May 20, 1976, which denied their motion for leave to serve a supplemental bill of particulars. Order reversed, with $50 costs and dis[660]*660bursements, and motion granted on condition that (1) the supplemental bill of particulars be served within 10 days of the date of the entry of the order to be made hereon and (2) if, within 10 days of the date of entry of the order to be made hereon, plaintiff serves defendant Nappa with a demand for his examination before trial, the said defendant appears therefor at the time and place set forth in the demand, or at such other time and place as may be agreed upon by the parties; otherwise, order affirmed, without costs or disbursements. Defendants, in their original bill of particulars dated January 7, 1974, stated that a supplemental bill would be provided before trial, updating the amount of expenses allegedly incurred, relating primarily to the mortgage payments and taxes. Plaintiff did not then object to the statement, but refused service of the supplemental bill two weeks prior to trial. Since plaintiff was on notice that such expenses would be updated in a supplemental bill, and as the nature of the expenses are not such as to require extensive investigation, and as defendants would be unduly prejudiced if the supplemental bill is not permitted to be served, the denial of the motion constituted an improvident exercise of discretion. Reliance by plaintiff upon section 675.7 of the rules of this court (22 NYCRR 675.7) is misplaced; the "unusual and unanticipated conditions” referred to therein were in fact anticipated by defendants’ statement in the original bill of particulars announcing that a supplemental bill updating expenses would be later provided. Hopkins, Acting P. J., Martuscello, Margett, Damiani and Hawkins, JJ., concur.

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Bluebook (online)

53 A.D.2d 659, 384 N.Y.S.2d 872, 1976 N.Y. App. Div. LEXIS 13396, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grace-v-nappa-nyappdiv-1976.