Raphael v. Cohen

Appellate Division of the Supreme Court of New York

Raphael v. Cohen

87 A.D.2d 815, 449 N.Y.S.2d 14, 1982 N.Y. App. Div. LEXIS 16268

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 5, 1982

StatusPublished

Cited by3 cases

This text of 87 A.D.2d 815 (Raphael v. Cohen) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Raphael v. Cohen, 87 A.D.2d 815, 449 N.Y.S.2d 14, 1982 N.Y. App. Div. LEXIS 16268 (N.Y. Ct. App. 1982).

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Opinion

Appeals by defendants in Action No. 1 from an order of the Supreme Court, Westchester County (Gurahian, J.), dated January 19, 1981, which, inter alia, granted plaintiffs’ motions to deem the bill of particulars timely served and to consolidate two actions brought by the plaintiffs and denied defendants’ cross motion, inter alia, for summary judgment. Order reversed on the law, with $50 costs and disbursements, plaintiffs’ motions are denied, defendants’ cross motion is granted and summary judgment is awarded to defendants in Action No. 1. Plaintiffs failed to make timely service of their bill of particulars in accordance with a conditional order of preclusion. The only excuse set forth in the record is law office failure and negligence. Even though the plaintiffs may have a meritorious case, there must be a reasonable excuse for failure to comply with a preclusion order. Law office failure alone is insufficient to constitute such an excuse. Special Term was incorrect in deeming the bill of particulars to be timely served in the face of more than nine months of delay, explained only by a law office failure. Defendants need not show prejudice from the delay. (See Baraseh v Micucci, 49 NY2d 594; Harris v Brooklyn Hosp. at Brooklyn Cumberland Med. Center, 81 AD2d 658; cf. Shillingford v Eckert, 80 AD2d 890, 891.) Accordingly, the defendants in Action No. 1 are entitled to summary judgment. Damiani, J. P., Titone, Thompson and Bracken, JJ., concur.

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Appeals by defendants in Action No. 1 from an order of the Supreme Court, Westchester County (Gurahian, J.), dated January 19, 1981, which, inter alia, granted plaintiffs’ motions to deem the bill of particulars timely served and to consolidate two actions brought by the plaintiffs and denied defendants’ cross motion, inter alia, for summary judgment. Order reversed on the law, with $50 costs and disbursements, plaintiffs’ motions are denied, defendants’ cross motion is granted and summary judgment is awarded to defendants in Action No. 1. Plaintiffs failed to make timely service of their bill of particulars in accordance with a conditional order of preclusion. The only excuse set forth in the record is law office failure and negligence. Even though the plaintiffs may have a meritorious case, there must be a reasonable excuse for failure to comply with a preclusion order. Law office failure alone is insufficient to constitute such an excuse. Special Term was incorrect in deeming the bill of particulars to be timely served in the face of more than nine months of delay, explained only by a law office failure. Defendants need not show prejudice from the delay. (See Baraseh v Micucci, 49 NY2d 594; Harris v Brooklyn Hosp. at Brooklyn Cumberland Med. Center, 81 AD2d 658; cf. Shillingford v Eckert, 80 AD2d 890, 891.) Accordingly, the defendants in Action No. 1 are entitled to summary judgment. Damiani, J. P., Titone, Thompson and Bracken, JJ., concur.

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Bluebook (online)

87 A.D.2d 815, 449 N.Y.S.2d 14, 1982 N.Y. App. Div. LEXIS 16268, Counsel Stack Legal Research, https://law.counselstack.com/opinion/raphael-v-cohen-nyappdiv-1982.

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