Kursa v. Barratiere

49 A.D.2d 781, 372 N.Y.S.2d 741, 1975 N.Y. App. Div. LEXIS 10806

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 18, 1975
• Status: Published

Opinion

Appeal from an order of the Supreme Court at Special Term, entered October 24, 1974 in Schenectady County, which granted defendants’ motion for a further bill of particulars. Plaintiff’s failure to furnish a bill of particulars in response to defendants’ demands therefor resulted in the entry of an uncontested conditional order of preclusion. A bill of particulars was thereafter supplied which defendants regarded as insufficient and they again moved for relief. Plaintiff now appeals from the ensuing order directing her to serve a further bill of particulars contending that it was improvidently granted inasmuch as defendants had concededly failed to move for such relief within 10 days after receipt of the contested bill or allege any special circumstances why they neglected to act within that period (cf. CPLR 3042, subd [d]). Plaintiff’s dilatory actions, though condemnable, cannot be permitted to offset or excuse defendants’ own delay in seeking their redress. It is unfortunate that plaintiff’s appeal also has the effect of further delaying pretrial proceedings which, but for her own devices, might otherwise have been completed by this time. Nevertheless, we cannot ignore the plain requirements of the statute and must reiterate our prior insistence upon strict compliance with its terms (cf. Lutza v Bollacker, 36 AD2d 789; Golowaty v Macknick Constr. Co., 26 AD2d 718). Order reversed, on the law and the facts, and motion denied, without costs. Herlihy, P. J., Kane, Main, Larkin and Reynolds, JJ., concur.