Moskowitz v. 440 Realty Corp.

13 Misc. 2d 748, 178 N.Y.S.2d 663, 1958 N.Y. Misc. LEXIS 3859

• Court: New York Supreme Court
• Decided: February 17, 1958
• Status: Published

Opinion

William C. Hecht, J.

A statement of readiness was filed by the plaintiff with a note of issue setting forth that the defendant had completed all preliminary proceedings except those with respect to a bill of particulars and an examination before trial, and that the defendant had a reasonable opportunity to complete such proceedings. Upon the failure of a defendant to move within 20 days after such statement has been filed to strike the cause from the calendar, based on affidavits specifying in what respects the action is not ready for trial or in what respects the statement is incorrect or deficient, the defendant is deemed to have waived its right to a bill of particulars and an examination before trial. Nevertheless, in the interests of justice, the court has discretion, where the circumstances warrant, to grant leave to the defendant to complete the necessary preliminary proceedings.

Under the circumstances presented here, the plaintiff will not be unduly prejudiced if the defendant is granted a limited period of time to complete its preliminary proceedings. The motion by the defendant to strike this cause from the calendar is denied. That branch of the motion seeking an order requiring the plaintiff to appear for an examination before trial and to serve a bill of particulars is referred to the calendar of Special Term, Part I, for February 21, 1958, and the plaintiff is given leave, if he is so advised, to submit an affidavit in opposition to any of the items of the demand for a bill of particulars or notice of examination before trial. The case is ordered placed on the Day Calendar for March 24, 1958, before which time the defendant is to complete the preliminary proceedings.