Shumalski v. Government Employees Insurance

425 N.E.2d 897, 54 N.Y.2d 671, 442 N.Y.S.2d 508, 1981 N.Y. LEXIS 2620

Opinion

OPINION OF THE COURT

On summary consideration, order affirmed, with costs. The Appellate Division reversed Special Term’s order granting plaintiffs permission to serve a further bill of particulars 11 months after the 30-day preclusion order “on the law and the facts”. In this circumstance, the disposition at the Appellate Division could be disturbed only if it were concluded that plaintiffs were entitled to be relieved of their delinquency as a matter of law and that the disposition at the Appellate Division therefore was an abuse of discretion (Barasch v Micucci, 49 NY2d 594, 598). The record does not permit that conclusion. In light of the breadth of the preclusion order effectively foreclosing proof of the cause of action sued on, summary judgment dismissing the complaint was properly granted.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.