Sanford v. Sanford

70 A.D.2d 556, 416 N.Y.S.2d 513, 1979 N.Y. App. Div. LEXIS 11941

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 22, 1979
• Status: Published

Opinion

— Order, Supreme Court, New York County, entered January 30, 1978, denying plaintiff’s motion to vacate conditional orders of preclusion, previously entered, unanimously reversed, on the law, on the facts, and in the exercise of discretion, without costs or disbursements, and the motion granted. Order, Supreme Court, New York County, entered January 10, 1979, denying defendant’s motion for judicial disqualification and related relief, unanimously affirmed, without costs or disbursements. In view of the disposition in the companion appeal, the appeal is otherwise unanimously dismissed, as academic, without costs or disbursements. Sufficient new grounds warranting a vacatur of the two outstanding conditional orders of preclusion were set forth in the motion submitted to Special Term on January 26, 1978. There was obvious inattention to the demand for a bill of particulars due to a change, concededly not the first, in plaintiffs attorneys. Later, at a time when plaintiff was without legal representation, there was misrepresentation, or at least confusion, as to whether the bill of particulars had been served. Moreover, a vacatur of the preclusion orders would not result in legal prejudice to defendant. When the matter reached a trial part, the Justice presiding, whatever his view, was, however, bound by the earlier ruling which was the law of the case. His ruling that he would not honor the preclusion orders is now academic. No cause was shown for his refusal and the motion was properly denied. Concur — Fein, J. P., Sullivan, Bloom and Lupiano, JJ.