Wolkowicki v. Rizzo

43 A.D.2d 838, 350 N.Y.S.2d 756, 1974 N.Y. App. Div. LEXIS 6021

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 4, 1974
• Status: Published

Opinion

—In a negligence action to recover damages for personal injuries, defendant appeals from an order of the Supreme Court, Kings County, dated May 16, 1973, which denied his motion for summary judgment and directed plaintiffs to serve a bill of -particulars and plaintiffs’ attorneys personally to pay $50 costs to defendant’s attorneys.. Order reversed, on the law, with $20 costs and disbursements, and defendant’s motion granted. Plaintiffs having failed to move for relief from the preclusion order, furthér failed, in opposition to the motion under review, to demonstrate the existence of a meritorious cause of action. Moreover, the weak excuse offered for their default in complying with the preclusion order at best falls into the category of explanations known as “ law office failures ”. Under these circumstances, it was an abuse of discretion by Special Term to grant relief to plaintiffs and to deny defendant’s motion for summary judgment {D’Antonio v. Fitzgerald, 11 A D 2d 804; Baumgarten v. Bratt, 11 A D 2d 803; Klinger v. Dudley], 40 A D 2d 1078; Sortino v. Fisher, 20 A D 2d 25; Lynch v. Siam’s Pony Farm, 32 A D 2d 867; Jansen’s Bottled Gas Sen. v. Warren Petroleum Gorp.', 47 Mise 2d 461). Rabin, P. J., Hopkins, Mitnder, Martuscello and Latham, JJ., concur.