Lugardo v. Folkes

110 A.D.2d 756, 488 N.Y.S.2d 210, 1985 N.Y. App. Div. LEXIS 48657

Opinion

Special Term did not improvidently exercise its discretion in refusing to open the plaintiffs’ default in serving a verified bill of particulars within 60 days after service upon them of a copy of the conditional preclusion order (Schicchi v Green Constr. Corp., 100 AD2d 509; Ferrigno v St. Charles Hosp., 86 AD2d 594). Plaintiffs failed to demonstrate that the lack of compliance with the terms of the order was excusable. Specifically, although there are four plaintiffs in this case, there were no extensive records to be compiled or persons to be interviewed due to the limited nature of the parties’ injuries and medical treatment (cf. Wheeler v State of New York, 104 AD2d 496). Moreover, plaintiffs’ counsel did not contact the attorneys for the defendant to advise them of the reason for the delay, did not make a motion within the 60-day period for an extension, and failed to supply a sufficient affidavit of merits in opposition to the cross motion for summary judgment predicated upon the noncompliance with the preclusion order (see, Amodeo v Radler, 89 AD2d 594, affd 59 NY2d 1001). Titone, J. P., Thompson, Bracken and Rubin, JJ., concur.