Stoltze v. Stanislaw

13 A.D.2d 1001, 216 N.Y.S.2d 446, 1961 N.Y. App. Div. LEXIS 10232

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 14, 1961
• Status: Published

Opinion

In an action to recover the unpaid balance under a building contract, in which defendant asserted a counterclaim for damages for a breach of the contract, the plaintiff appeals from an order of the Supreme Court, Suffolk County, dated January 5, 1961, denying her motion for leave to renew a motion to direct defendant to accept a bill of particulars, to vacate the summary judgment entered September 19, 1960, in favor of the defendant, and for other relief. Order reversed, with $10 costs and disbursements; and plaintiff’s motion granted to the extent of: (a) giving her leave , to renew her prior motion to direct the defendant to accept her bill of particulars; (b) directing the defendant to accept the bill of particulars without prejudice however to his right to move with respect to such bill on any ground other than the untimeliness, of its service upon him; and (e) vacating the summary judgment. Plaintiff is also granted leave to reapply to Special Term for an order to permit her discovery and inspection of the premises, and for an order to restore the action to the calendar. On the motion for renewal it was pointed out to the court for the first time that summary judgment had been granted without an affidavit in support thereof. The delay of one day in serving the extensive bill of particulars was excusable under all the facts and circumstances, including the fact that no order fixing the date by which plaintiff was permitted to serve the bill, was served on plaintiff until after the bill itself had been served. Beldock, Acting P. J., Ughetta, Kleinfeld, Christ and Pette, JJ., concur.