Wilkinson v. Higbee

Appellate Division of the Supreme Court of New York

Wilkinson v. Higbee

54 A.D.2d 612, 387 N.Y.S.2d 333, 1976 N.Y. App. Div. LEXIS 14012

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

DecidedSeptember 24, 1976

StatusPublished

This text of 54 A.D.2d 612 (Wilkinson v. Higbee) 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

Wilkinson v. Higbee, 54 A.D.2d 612, 387 N.Y.S.2d 333, 1976 N.Y. App. Div. LEXIS 14012 (N.Y. Ct. App. 1976).

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Opinion

and judgment unanimously affirmed, without costs. Memorandum: Defendant moved for an order of summary judgment dismissing plaintiff’s complaint and plaintiff cross-moved for an order directing defendant to accept her tendered bill of particulars and to vacate an order of preclusion. Special Term denied plaintiff’s motion and granted defendant’s motion, holding that the admitted "law office failure” or "law office inadvertence” of plaintiff’s attorney is insufficient reason to excuse the inordinate delay in furnishing the bill of particulars, after service upon the attorney of the order of preclusion. As we stated in Williams v Mallinckrodt Chem. Works (42 AD2d 1044, 1045) "we have [613]*613repeatedly held that law office failures do not excuse defaults such as occurred here (see Abbinanti v. Baisch, 41 A D 2d 693)”. (See, also, Rabetoy v Atkinson, 49 AD2d 691, app dsmd 37 NY2d 803; McIntire Assoc. v Glens Falls Ins. Co., 41 AD2d 692; Dent v Baxter, 37 AD2d 908; Clements v Peters, 33 AD2d 1096; Sortino v Fisher, 20 AD2d 25, 29.) No extraordinary or exceptional circumstances are alleged and Special Term’s discretion was properly exercised (Schultz v Kobus, 15 AD2d 382). (Appeal from order and judgment of Wayne Supreme Court—summary judgment.) Present—Marsh, P. J., Moule, Simons, Goldman and Witmer, JJ.

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and judgment unanimously affirmed, without costs. Memorandum: Defendant moved for an order of summary judgment dismissing plaintiff’s complaint and plaintiff cross-moved for an order directing defendant to accept her tendered bill of particulars and to vacate an order of preclusion. Special Term denied plaintiff’s motion and granted defendant’s motion, holding that the admitted "law office failure” or "law office inadvertence” of plaintiff’s attorney is insufficient reason to excuse the inordinate delay in furnishing the bill of particulars, after service upon the attorney of the order of preclusion. As we stated in Williams v Mallinckrodt Chem. Works (42 AD2d 1044, 1045) "we have [613]*613repeatedly held that law office failures do not excuse defaults such as occurred here (see Abbinanti v. Baisch, 41 A D 2d 693)”. (See, also, Rabetoy v Atkinson, 49 AD2d 691, app dsmd 37 NY2d 803; McIntire Assoc. v Glens Falls Ins. Co., 41 AD2d 692; Dent v Baxter, 37 AD2d 908; Clements v Peters, 33 AD2d 1096; Sortino v Fisher, 20 AD2d 25, 29.) No extraordinary or exceptional circumstances are alleged and Special Term’s discretion was properly exercised (Schultz v Kobus, 15 AD2d 382). (Appeal from order and judgment of Wayne Supreme Court—summary judgment.) Present—Marsh, P. J., Moule, Simons, Goldman and Witmer, JJ.

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Bluebook (online)

54 A.D.2d 612, 387 N.Y.S.2d 333, 1976 N.Y. App. Div. LEXIS 14012, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilkinson-v-higbee-nyappdiv-1976.

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