Poyer v. Nnebe

71 A.D.3d 565, 896 N.Y.S.2d 679

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 25, 2010
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered on or about May 19, 2009, insofar as it denied defendants’ motion for summary judgment dismissing the complaint based on plaintiffs’ failure to comply with a compliance conference order, unanimously affirmed, without costs.

Flaintiffs failed to serve bills of particulars on certain defendants within the time set forth in a compliance conference order. The order provided that failure to comply would result in the preclusion of the offending party or waiver of examination before trial, unless otherwise ordered by the court. Here, the court properly exercised its discretion in determining that preclusion was unwarranted (see Rankin v Miller, 252 AD2d 863 [1998]). Defendants failed to demonstrate any harm resulting from the failure to respond to all of their demands for bills of particulars (see Northway Eng’g v Felix Indus., 77 NY2d 332, 336 [1991]), and they also appear to have been deficient in complying with the scheduling order. Concur—Gonzalez, P.J., Moskowitz, Freedman, Richter and Román, JJ.