Santangelo v. YMCA

100 A.D.2d 581, 473 N.Y.S.2d 520, 1984 N.Y. App. Div. LEXIS 17559

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 19, 1984
• Status: Published

Opinion

In a negligence action to recover damages for personal injuries, etc., plaintiffs appeal from an order of the Supreme Court, Nassau County (Lockman, J.), dated February 10, 1983, which granted defendants’ motion for reargument of their motion for summary judgment and, upon reargument, granted their motion for summary judgment dismissing the complaint as to both plaintiffs. 11 Order affirmed, with costs. 11 An unappealed order granting summary judgment in a prior action for failure to timely serve a bill of particulars in response to a conditional order of preclusion bars another action between the same parties based upon the same cause of action, in order to prevent a party from circumventing the preclusion decree (see Strange v Montefiore Hosp. & Med. Center, 59 NY2d 737; Barrett v Kasco Constr. Co., 56 NY2d 830; Schicchi v Green Constr. Corp., 100 AD2d 509; Palmer v Fox, 28 AD2d 968, affd 22 NY2d 667; Mitchell v Kiamesha Concord, 94 AD2d 914; Cebron v McBride Dev. Corp., 93 AD2d 876). In the case at bar, plaintiffs failed to appeal from both an order granting summary judgment dismissing their original complaint for failure to serve a bill of particulars pursuant to a 20-day conditional order of preclusion and from an order denying their motion to vacate that order. Instead, they commenced a second action against defendants on the same cause of action. Under these circumstances, Special Term properly granted summary judgment dismissing plaintiffs’ second action on the basis of res judicata in order to prevent circumvention of its prior order. Plaintiffs’ default in the first action cannot be excused in the exercise of discretion. Titone, J. P., Mangano, Thompson and Fiber, JJ., concur.