McCraith v. Wehrung

42 A.D.2d 825, 345 N.Y.S.2d 803, 1973 N.Y. App. Div. LEXIS 3877

Opinion

Order unanimously modified to delete condition contained in first ordering paragraph and as modified affirmed without costs. Memorandum: Defendant appeals from an order which granted his motion for summary judgment conditionally, that is, unless the plaintiffs served a proper bill of particulars on defendant before a specified date. In effect, the order granted a cross motion to vacate a preclusion order entered against the plaintiffs more than 15 months earlier. It was an abuse of discretion to grant this relief to plaintiffs. Each step of the litigation, including the motion for preclusion, the motion to vacate the preclusion order and preparing the opposition to this appeal, has been accompanied by delay. In their moving papers plaintiffs allege that they were unable to obtain a report from one of the doctors needed to supply the particulars demanded. At the same time they allege that the delay caused no prejudice to defendant because medical information in the form of hospital records and a report from the attending physician were forwarded to the carrier. With these records available, plaintiffs possessed sufficient information to enable them to supply particulars, to be supplemented later if necessary, and thus avoid preclusions. Their failure to make any effort to comply with the order is inexcusable (RVA Trucking v. Lane Constr. Corp., 35 A D 2d 773). By virtue of this preclusion order, plaintiffs will be unable to make out a prima facie case and summary judgment should have been granted (Clements v. Peters, 33 A D 2d 1096). (Appeal from order of Erie Special Term granting summary judgment unless bill of particulars served.) Present — Marsh, J. P., Witmer, Cardamone, Simons and Henry, JJ.