Le Frois Foods Corp. v. Aetna Insurance

47 A.D.2d 994, 366 N.Y.S.2d 703, 1975 N.Y. App. Div. LEXIS 9486

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 17, 1975
• Status: Published

Opinion

Order unanimously reversed, without costs, and motion denied. Memorandum: Time ' and again we have held that conditional orders of preclusion for failure to serve a bill of particulars may not be disregarded with impunity, and that in the absence of extraordinary and exceptional circumstances it is an abuse of discretion by Special Term to grant relief from such an order (Dent v Baxter, 37 AD2d 908). In addition, "Excuses for avoidable delay are insufficient which merely lay the delay at the door of the plaintiff himself, his lawyer of record, trial counsel, other associated counsel, or employees of any of the lawyers”. (Sortino v Fisher, 20 AD2d 25, 29; see, also, Williams v Mallinckrodt Chem. Works, 42 AD2d 1044.) Since plaintiffs failed to meet their burden of explanation for neglect, other than overextension of counsel in professional commitments undertaken by him, it was an improvident exercise of discretion to vacate the orders of preclusion. (Appeal from order of Monroe Special Term vacating preclusion order.) Present — Marsh, P. J., Simons, Mahoney and Witmer, JJ.