Halloran v. Portville Forest Products, Inc.

120 A.D.2d 962, 502 N.Y.S.2d 839, 1986 N.Y. App. Div. LEXIS 57061

Opinion

— Order unanimously reversed, on the law, with costs, and motion denied. Memorandum: We recently affirmed an order granting summary judgment to plaintiff on the issue of liability (Halloran v Portville Forest Prods., 115 AD2d 309). It is thus established that there is merit to plaintiff’s case.

Plaintiff now appeals from an order precluding him from offering proof of damages as to "those items in defendant’s demand for a bill of particulars against which a protective order has not been granted because of the failure of plaintiff to make any serious attempt to comply with the demand”. In circumstances presented, it was an improvident exercise of discretion to grant the order of preclusion.

It would serve no useful purpose here to recite the multiple motions and cross motions and the many procedural irregularities engaged in by the parties during the tortured history of this case. It is enough for our purposes to note that more than four months before the preclusion order was entered, plaintiff had fully complied with defendant’s demand for particulars and his explanation for having previously failed to do so was not unreasonable. (Appeal from order of Supreme Court, Steuben County, Finnerty, J. — preclusion order.) Present — Dillon, P. J., Boomer, Pine, Balio and Schnepp, JJ.