Turbowitz v. Mapeth, Inc.

Appellate Division of the Supreme Court of New York

Turbowitz v. Mapeth, Inc.

140 A.D.2d 433, 528 N.Y.S.2d 135, 1988 N.Y. App. Div. LEXIS 4919

Appellate Division of the Supreme Court of the State of New York·Decided May 9, 1988·Published·Cited by 1 cases

Opinion

[434] By order dated October 15, 1986, the plaintiff, whose failure to serve a bill of particulars then spanned a 21/i-year period, was warned that her continued failure to serve a bill within 15 days of service of the order would result in preclusion. In December 1986, the defendants moved for summary judgment dismissing the complaint on the ground that the bill had never been served and that it was impossible for the plaintiff to establish a prima facie case against them in light of the prior conditional order of preclusion (see, CPLR 3042 [e]). It was only in response to the defendants’ motion for summary judgment that the plaintiff finally served her bill of particulars. She did not, however, move to vacate her default in timely serving a bill and failed to establish the merits of her cause of action (see, Trinchera v Yonkers Gen. Hosp., 131 AD2d 841; Centenni v St. Peter of Alcantara, 99 AD2d 525, lv denied 63 NY2d 605). The Supreme Court therefore properly granted the defendants’ motion. Thompson, J. P., Kunzeman, Rubin and Harwood, JJ., concur.

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[434] By order dated October 15, 1986, the plaintiff, whose failure to serve a bill of particulars then spanned a 21/i-year period, was warned that her continued failure to serve a bill within 15 days of service of the order would result in preclusion. In December 1986, the defendants moved for summary judgment dismissing the complaint on the ground that the bill had never been served and that it was impossible for the plaintiff to establish a prima facie case against them in light of the prior conditional order of preclusion (see, CPLR 3042 [e]). It was only in response to the defendants’ motion for summary judgment that the plaintiff finally served her bill of particulars. She did not, however, move to vacate her default in timely serving a bill and failed to establish the merits of her cause of action (see, Trinchera v Yonkers Gen. Hosp., 131 AD2d 841; Centenni v St. Peter of Alcantara, 99 AD2d 525, lv denied 63 NY2d 605). The Supreme Court therefore properly granted the defendants’ motion. Thompson, J. P., Kunzeman, Rubin and Harwood, JJ., concur.

Turbowitz v. Mapeth, Inc., 140 A.D.2d 433, 528 N.Y.S.2d 135, 1988 N.Y. App. Div. LEXIS 4919 (N.Y. Ct. App. 1988).

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