Clanton v. Vagianellis

• Decision Date: 22 April 1993
• Citation: 192 A.D.2d 943,596 N.Y.S.2d 593
• Parties: Beverly CLANTON, Appellant, v. Paul VAGIANELLIS et al., Defendants, and Ronald H. Sinzheimer, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 593

596 N.Y.S.2d 593

192 A.D.2d 943

Beverly CLANTON, Appellant, v. Paul VAGIANELLIS et al., Defendants and Ronald H. Sinzheimer, Respondent.

Supreme Court, Appellate Division Third Department.

April 22, 1993.

Englert, Stillman, Coffey, McHugh & Maggs (Dennis M. Englert, of counsel), Schenectady, for appellant.

Roche, Corrigan, McCoy & Bush (Scott W. Bush, of counsel), Albany, for respondent.

Before WEISS, P.J., and YESAWICH, MAHONEY, CASEY and HARVEY, JJ.

MAHONEY, Justice.

Appeal from an order of the Supreme Court (Lynch, J.), entered December 10, 1991 in Schenectady County, which, inter alia, granted defendant Ronald H. Sinzheimer's motion for summary judgment dismissing the complaint against him.

This action arises out of plaintiff's purchase of a majority interest in The Place for Steaks, Inc. As is more fully set forth in a prior decision of this court (187 A.D.2d 45, 592 N.Y.S.2d 139), the corporation began to experience severe financial difficulties shortly after purchase. Plaintiff then commenced this action against the sellers alleging that they fraudulently misrepresented the corporation's financial situation and against her attorney, defendant Ronald H. Sinzheimer (hereinafter defendant), sounding in legal malpractice alleging that he negligently represented her and breached a fiduciary duty owed to her. We earlier affirmed the dismissal of the claims against the sellers (187 A.D.2d 45, 592 N.Y.S.2d 139, supra ), leaving only the legal malpractice claim which is the subject of the instant appeal.

A review of the record with regard to this claim establishes that following receipt of an assertedly defective bill of particulars, defendant made a motion for an order of preclusion or in the alternative for a further bill of particulars. Supreme Court agreed that certain of plaintiff's responses were insufficient and issued a conditional order requiring plaintiff to serve a further bill of particulars within 30 days after service of a copy thereof with notice of entry. Service was effected on September 28, 1987. While the parties proceeded with discovery, conducted depositions and ultimately filed a note of issue in 1990, plaintiff never complied with the 1987 further bill of particulars order. This default prompted defendant to move for summary judgment in June 1991. Plaintiff cross-moved for an order directing defendant to accept service of a further bill of particulars claiming law office failure and lack of prejudice. Supreme Court denied the cross motion and granted defendant's motion. Plaintiff appeals.

There must be an affirmance. It is well established that in order for a party to obtain an extension of time to comply with a conditional preclusion order of which he or she is in default, a reasonable excuse for the default must be presented along with an affidavit of merit from a person competent to attest to the merit of the claim or defense involved (see, St. Agnes Hosp. v. Dengler, 131 A.D.2d 657, 658, 516 N.Y.S.2d 738; see also, Coakley v. Gabel, 158 A.D.2d 954, 551 N.Y.S.2d 114, lv. dismissed, lv. denied 76 N.Y.2d 931, 563 N.Y.S.2d 57, 564 N.E.2d 667; White v. Leonard, 140 A.D.2d 518, 519-520, 528 N.Y.S.2d 607, appeal dismissed 73 N.Y.2d 756, 536 N.Y.S.2d 59, 532 N.E.2d 1287; Fiore v. Galang, 105 A.D.2d 970, 482 N.Y.S.2d 110, affd. 64 N.Y.2d 999, 489 N.Y.S.2d 47, 478 N.E.2d 188). The reasonableness of the excuse and the sufficiency of the affidavit of merit are left to the sound discretion of the nisi prius court (see, Giscombe v. Flatbush Gen. Hosp., 133 A.D.2d 666, 667, 519 N.Y.S.2d 837). Here, we cannot say that Supreme Court abused its discretion in not accepting plaintiff's proffered excuse, to wit, a wholly speculative statement by plaintiff's current counsel that at...