Hesselbarth v. Paredes

110 A.D.2d 818, 488 N.Y.S.2d 238, 1985 N.Y. App. Div. LEXIS 48720

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 22, 1985
• Status: Published

Opinion

Appellant’s motion to dismiss was based on respondents’ failure to comply with a conditional order of preclusion dated December 1, 1981. In opposition to the motion, respondents’ counsel argued that he had never received the conditional order of preclusion. Specifically, respondents’ counsel alleged that (1) his office address contained a post office box number as required by the postal authorities, (2) the appellant’s affidavit of service by mail of the conditional order of preclusion failed to list the post office box number, and (3) this omission, which had caused problems with other mailings, may have caused the mailed conditional order of preclusion to be lost or misplaced.

Since it appears that the appellant’s affidavit of service by mail of the conditional order of preclusion was not as complete as required by the postal authorities, we consider it inappropriate to unconditionally grant appellant’s motion to dismiss (Anthony v Schofield, 265 App Div 423; cf. Engel v Lichterman, 95 AD2d 536, affd 62 NY2d 943). Accordingly, we have granted respondents’ counsel one more opportunity to comply with the conditional order of preclusion. Nevertheless, it appears that respondents’ counsel has been guilty of delay in this case in complying with the demand for a bill of particulars. Accordingly, we deem it appropriate to impose a monetary penalty upon respondents’ counsel, to be personally paid to appellant’s counsel. Mangano, J. P., Gibbons, Bracken and Niehoff, JJ., concur.