Opinion
May 6, 1985
Appeal from the Supreme Court, Westchester County (Gurahian, J.).
Order dated January 19, 1981, affirmed, without costs or disbursements, on condition that within 30 days after service upon plaintiffs' counsel of a copy of the order to be made hereon, with notice of entry, they personally pay to defendants the total sum of $1,000. In the event plaintiffs' counsel fail to comply with this condition, order reversed, as a matter of discretion, with costs, motions denied, cross motion granted, and summary judgment awarded to defendants in action No. 1.
This court's original memorandum concluded that the excuse proffered by plaintiffs for failing to timely serve their bill of particulars in accordance with a conditional order of preclusion amounted to no more than law office failure ( Raphael v. Cohen, 87 A.D.2d 815, supra). Thereafter CPLR 2005 was enacted to empower the courts, under appropriate circumstances, to exercise discretion in the interest of justice to excuse delay or default resulting from law office failure (CPLR 2005, added L 1983, ch 318, eff June 21, 1983). Pursuant to that enactment, we determine that plaintiffs' default should be excused in accord with the long-established public policy that actions should be resolved on their merits ( Mineroff v. Macy's Co., 97 A.D.2d 535, 536). Although plaintiffs failed to serve their bill of particulars in accordance with a conditional order of preclusion because of law office failure, the defendants suffered no prejudice as a result thereof. Mollen, P.J., Titone, Thompson and Bracken, JJ., concur.