Hess v. Wessendorf

• Decision Date: 14 June 1984
• Citation: 477 N.Y.S.2d 515,102 A.D.2d 926
• Parties: Ann M. HESS et al., Respondents, v. Walter F. WESSENDORF, Jr., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 515

477 N.Y.S.2d 515

102 A.D.2d 926

Ann M. HESS et al., Respondents, v. Walter F. WESSENDORF, Jr., Appellant.

Supreme Court, Appellate Division,

Third Department.

June 14, 1984.

Walter F. Wessendorf, Jr., pro se.

Grasso, Rodriguez, Putorti & Grasso, Schenectady (Michael R. Cuevas, Schenectady, of counsel), for respondents.

Before MAIN, J.P., and CASEY, YESAWICH and HARVEY, JJ.

MEMORANDUM DECISION.

Appeals (1) from an order of the Supreme Court at Special Term, entered August 4, 1983 in Schenectady County, which denied defendant's motion to vacate plaintiffs' note of issue, and (2) from an order of said court, entered August 4, 1983 in Schenectady County, which denied defendant's motion and plaintiffs' cross motion for summary judgment, granted plaintiffs' cross motion for relief from a conditional order of preclusion and directed defendant to accept plaintiffs' bill of particulars.

The orders must be affirmed. Plaintiffs' cross motion for relief from the conditional order of preclusion should have been made to Justice Harold Soden, who had issued the conditional order of preclusion (CPLR 2221). At this time, however, we deem it appropriate to consider the subsequent order granting plaintiffs' motion for relief from the preclusion order, notwithstanding that Justice Dominick Viscardi made this subsequent order. In this regard, we note that it was some three years before this subsequent order was entered, during which time Justice Soden retired from the bench. Our review of the record leads us to conclude that although conditional orders of preclusion should not be disregarded lightly (see, e.g., Shumalski v. Government Employees Ins. Co., 80 A.D.2d 975, 976, 438 N.Y.S.2d 609, affd. 54 N.Y.2d 671, 442 N.Y.S.2d 508, 425 N.E.2d 897; Scholefield v. DeCordier, 70 A.D.2d 351, 421 N.Y.S.2d 645), in this case Special Term did not abuse its discretion in granting plaintiffs' motion for relief from the 60-day conditional order of preclusion (see Maglieri v. Saks, 33 A.D.2d 898, 306 N.Y.S.2d 479). We further agree with Special Term that issues of fact appear in the record, thereby precluding summary judgment for either party, and that defendant failed to follow the procedure outlined in CPLR 3042 (subd. ) in challenging the sufficiency of plaintiffs' bill of particulars and thereby waived any objection to plaintiffs' bill (see Lutza v. Bollacker, 36 A.D.2d 789, 319 N.Y.S.2d 371). We add that the parties would be well advised to move this matter...