Schippman v. Rizzo

Appellate Division of the Supreme Court of New York

Schippman v. Rizzo

12 A.D.2d 984, 212 N.Y.S.2d 214, 1961 N.Y. App. Div. LEXIS 12445

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

DecidedFebruary 27, 1961

StatusPublished

This text of 12 A.D.2d 984 (Schippman v. Rizzo) 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

Schippman v. Rizzo, 12 A.D.2d 984, 212 N.Y.S.2d 214, 1961 N.Y. App. Div. LEXIS 12445 (N.Y. Ct. App. 1961).

Pincite

Opinion

In an action to recover damages for personal injuries, defendants Stern and Lorber appeal from an order of the Supreme Court, Kings County, dated August 23, 1960, which in effect opens plaintiffs’ default in serving a bill of particulars within the time prescribed in a prior preclusion order of said court, entered by consent, on March 18, 1958. Under said prior order, plaintiffs were precluded from offering evidence upon the trial with respect to matters as to which a bill of particulars had been demanded, unless plaintiffs served the bill within 30 days after service of a copy of the order with notice of entry. A bill of particulars served on or about May 19, 1958, was rejected as untimely by said defendants Stem and Lorber. Order, dated August 23, 1960, reversed, with $10 costs and disbursements, and motion denied, with $10 costs, without prejudice to renewal upon proper affidavits reciting facts showing a reasonable excuse for the delay in serving the bill of particulars, and showing merit in plaintiffs’ alleged causes of action against said defendants. The papers do not furnish an adequate basis for the exercise of the court’s discretion in opening plaintiffs’ default under the preclusion order. Nor is there an affidavit showing the merits of plaintffs’ causes of action. Where an attorney seeks the favor of the court, he should at least observe the applicable rules of practice (Parmett v. Concord Hotel, 9 A D 2d 767). Nolan, P. J., Beldock, Ughetta, Christ and Brennan, JJ., concur.

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In an action to recover damages for personal injuries, defendants Stern and Lorber appeal from an order of the Supreme Court, Kings County, dated August 23, 1960, which in effect opens plaintiffs’ default in serving a bill of particulars within the time prescribed in a prior preclusion order of said court, entered by consent, on March 18, 1958. Under said prior order, plaintiffs were precluded from offering evidence upon the trial with respect to matters as to which a bill of particulars had been demanded, unless plaintiffs served the bill within 30 days after service of a copy of the order with notice of entry. A bill of particulars served on or about May 19, 1958, was rejected as untimely by said defendants Stem and Lorber. Order, dated August 23, 1960, reversed, with $10 costs and disbursements, and motion denied, with $10 costs, without prejudice to renewal upon proper affidavits reciting facts showing a reasonable excuse for the delay in serving the bill of particulars, and showing merit in plaintiffs’ alleged causes of action against said defendants. The papers do not furnish an adequate basis for the exercise of the court’s discretion in opening plaintiffs’ default under the preclusion order. Nor is there an affidavit showing the merits of plaintffs’ causes of action. Where an attorney seeks the favor of the court, he should at least observe the applicable rules of practice (Parmett v. Concord Hotel, 9 A D 2d 767). Nolan, P. J., Beldock, Ughetta, Christ and Brennan, JJ., concur.

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Bluebook (online)

12 A.D.2d 984, 212 N.Y.S.2d 214, 1961 N.Y. App. Div. LEXIS 12445, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schippman-v-rizzo-nyappdiv-1961.