Stojowski v. Fair Oaks Development Corp.

151 A.D.2d 661, 542 N.Y.S.2d 724, 1989 N.Y. App. Div. LEXIS 8229

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 19, 1989
• Status: Published

Opinion

In an action to recover damages, inter alia, for breach of contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Lockman, J.), dated September 30, 1987, which granted defendant’s motion for summary judgment dismissing the complaint and severed and continued the counterclaims.

Ordered that the order is affirmed, without costs or disbursements.

As a result of the plaintiff’s failure to timely serve a bill of particulars, as directed by a conditional order of preclusion, the terms of that order became absolute (see, St. Agnes Hosp. v Dengler, 131 AD2d 657). The record demonstrates that, in the face of that order, the plaintiff could not prove the essential allegations of his causes of action, thereby requiring that the defendant’s motion for summary judgment be granted unless plaintiff demonstrated both an acceptable excuse for the delay in serving a bill of particulars and the existence of a meritorious cause of action (St. Agnes Hosp. v Dengler, supra; Lugardo v Folkes, 110 AD2d 756).

To the extent that the plaintiff presently relies on arguments and affidavits made on a subsequent motion for leave to reargue, his contentions are not properly before this court (see, Kartiganer Assocs. v Town of New Windsor, 132 AD2d 527). Since the plaintiff wholly failed to address the merits of his complaint in response to the defendant’s motion for summary judgment, the Supreme Court properly declined to relieve the plaintiff from the effects of the order of preclusion and summary judgment dismissing the complaint was proper (see, St. Agnes Hosp. v Dengler, supra). Brown, J. P., Fiber, Sullivan and Rosenblatt, JJ., concur.