Raphael v. Cohen
| Decision Date | 05 April 1982 |
| Citation | 87 A.D.2d 815,449 N.Y.S.2d 14 |
| Parties | Sheldon R. RAPHAEL, et al., Respondents, v. Myron COHEN, et al., Appellants. (and a second action). |
| Court | New York Supreme Court — Appellate Division |
Clark, Gagliardi & Miller, P. C., White Plains (Judith A. Aydelott, White Plains, of counsel), for appellants.
Julien, Schlesinger & Finz, P. C., New York City (Leonard L. Finz, Stuart A. Schlesinger and David Jaroslawicz, New York City, of counsel), for respondents.
Before DAMIANI, J. P., and TITONE, THOMPSON and BRACKEN, JJ.
MEMORANDUM BY THE COURT.
Appeals by defendants in action No. 1 from an order of the Supreme Court, Westchester County, dated January 19, 1981, which, inter alia, granted plaintiffs' motions to deem the bill of particulars timely served and to consolidate two actions brought by the plaintiffs and denied defendants' cross motion, inter alia, for summary judgment.
Order reversed on the law, with $50 costs and disbursements, plaintiffs' motions are denied, defendants' cross motion is granted and summary judgment is awarded to defendants in action No. 1.
Plaintiffs failed to make timely service of their bill of particulars in accordance with a conditional order of preclusion. The only excuse set forth in the record is law office failure and negligence. Even though the plaintiffs may have a meritorious case, there must be a reasonable excuse for failure to comply with a preclusion order. Law office failure alone is insufficient to constitute such an excuse. Special Term was incorrect in deeming the bill of particulars to be timely served in the face of more than nine months of delay, explained only by a law office failure. Defendants need not show prejudice from the delay. (See Barasch v. Micucci, 49 N.Y.2d 594, 427 N.Y.S.2d 732, 404 N.E.2d 1275; Harris v. Brooklyn Hospital at Brooklyn Cumberland Med. Center, 81 A.D.2d 658, 438 N.Y.S.2d 370; cf. Shillingford v. Eckert, 80 A.D.2d 890, 891, 437 N.Y.S.2d 121.) Accordingly, the defendants in action No. 1 are entitled to summary judgment.
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