Lawrence v. Westchester Book Composition, Inc.

127 A.D.2d 744, 511 N.Y.S.2d 933, 1987 N.Y. App. Div. LEXIS 43229

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 17, 1987
• Status: Published

Opinion

In a negligence action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Westchester County (Rosenblatt, J.), dated September 18, 1985, which conditionally denied their motion for summary judgment based upon a prior preclusion order.

Ordered that the order is reversed, on the law and in the exercise of discretion, without costs or disbursements, the motion is granted, and the complaint is dismissed.

The plaintiffs’ counsel’s bald claim of "inadvertence” is totally insufficient to excuse a long period of inactivity on his part. The demand for a bill of particulars and other specified information was served upon the plaintiffs in August or September of 1983. When the plaintiffs failed to comply, the defendants moved to preclude. The plaintiffs did not oppose the motion and, on March 20, 1984, were served with the resulting conditional preclusion order, with notice of entry. The plaintiffs still did not comply. In July 1985 the defendants moved for summary judgment based upon the preclusion order. This time, faced with dismissal of their complaint, the plaintiffs responded and proffered the bill of particulars and other information sought by the defendants some two years earlier. In our view, this unexcused two-year delay warranted an unconditional granting of the defendants’ motion (see, Engel v Lichterman, 95 AD2d 536, affd 62 NY2d 943). Thompson, P. J., Niehoff, Weinstein, Kunzeman and Spatt, JJ., concur.