Opinion
October 19, 1957
Present — Foster, P.J., Bergan, Coon, Halpern and Gibson, JJ.
Appeal from an order of the Supreme Court, Special Term, Albany County, which granted, upon conditions, plaintiff-respondent's motion to be relieved from an order of preclusion which became effective upon her failure to serve a bill of particulars within the time specified in such order. The application was first denied but thereafter granted upon the reargument or renewal of the application which the Special Term in a reasonable exercise of its discretion permitted, upon the presentation of more detailed proof, including an affidavit of the attorney of record, whose previous failure to present an affidavit had been remarked upon by the Special Term in its initial denial of the application. We find in the determination of the motion proper no abuse of discretion. The experienced Justice who heard the application was warranted in finding in the combination of a number of unusual circumstances contributing to cause the default sufficient grounds for relieving respondent from the original order of preclusion. In this somewhat exceptional factual situation, the Special Term was not bound to follow the stricter practice contemplated by our decision in Paris v. Poticha ( 1 A.D.2d 277), although in the absence of exceptional circumstances that practice should be followed. Order unanimously affirmed, with $10 costs.