Opinion
March 24, 1977
Order, Supreme Court, New York County, entered July 8, 1976, denying plaintiff's motion to vacate order of preclusion dated October 3, 1974, is affirmed, without costs and without disbursements. A previous motion to vacate the order of preclusion was denied by another Justice. No appeal was taken therefrom, and the present motion was made five months after expiration of that time to appeal. Further, no adequate excuse was given for the inordinate delays in serving the bill of particulars, in complying with the extremely generous conditions of the order of preclusion, or in making the two motions to vacate that order. Nor is there any showing of merit.
Concur — Kupferman, J.P., Silverman and Markewich, JJ.;
We feel it is unfair to deny this seriously injured plaintiff his day in court solely on the basis of his lawyer's conduct. The defendant has not shown it was prejudiced by the untimely service of the bill of particulars, which, in any event, was unacceptable to the defendant. The delay in obtaining the necessary information demanded by the defendant is explained, in part, by the fact that plaintiff's attorney is a single practitioner who was out of the State at frequent intervals visiting his seriously ill father. In the interest of justice we would reverse, vacate the preclusion order, and allow plaintiff to serve the bill of particulars on condition that plaintiff's counsel personally pay to defendant costs in the sum of $750.