Raphael v. Cohen

465 N.E.2d 34, 62 N.Y.2d 700, 476 N.Y.S.2d 527, 1984 N.Y. LEXIS 4305

• Court: New York Court of Appeals
• Decided: May 3, 1984
• Status: Published

Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the case remitted to that court for the exercise of its discretion.

Supreme Court granted plaintiffs’ cross motion to deem their bill of particulars timely served, “in the interests of justice”. The Appellate Division reversed, on the law, denied plaintiffs’ motions, and granted defendants’ cross motion for summary judgment, noting that the only excuse for the delay in serving the bill was law office failure which was an insufficient excuse. CPLR 2005 now allows delay or default due to law office failure to be excused in the exercise of discretion. The Appellate Division should consider whether in the exercise of this discretion plaintiffs’ delay in serving their bill of particulars should be excused, as well as whether plaintiffs have demonstrated that they have a meritorious cause of action.

Chief Judge Cooke and Judges Jasen, Jones, Wacht-ler, Meyer, Simons and Kaye concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, with costs, and case remitted to the Appellate Division, Second Department, for the exercise of its discretion, in a memorandum.