Maglieri v. Saks

33 A.D.2d 898, 306 N.Y.S.2d 479, 1970 N.Y. App. Div. LEXIS 5698

Opinion

Order,. entered August 21, 1969, granting plaintiff’s motion to vacate a preclusion order and permitting service of a bill of particulars, unanimously modified on the law and the facts, and in the exercise of discretion to' the extent of conditioning the vacatur of the preclusion order upon the payment of $100 in costs by plaintiff, within 20 days from the date of entry of the order herein, and- otherwise the order is affirmed, with $30 costs and disbursements to defendant-appellant, Under the circumstances, plaintiff’s service of a bill of particulars after the time fixed by the conditional order of preclusion was adequately explained,, and in the absence of any proof of prejudice, plaintiff was entitled to be relieved of the effects of a preclusion. Nevertheless, the delay in complying with the conditional order of preclusion should not have been completely ignored and conditions should have been imposed to the granting of relief. Accordingly, in the exercise of a sound discretion, plaintiff should have been allowed to serve her bill of particulars upon the condition above stated. Concur — Eager, J. P., Capozzoli, Markewieh and McNally, JJ.