Opinion
December 29, 1995
Appeal from the Supreme Court, Suffolk County (Prudenti, J.).
Ordered that the order is modified by adding to the provision thereof denying the motion to preclude the plaintiff from offering evidence at trial the words "on condition that the plaintiff's attorney pay to the defendant the sum of $750 costs"; as so modified, the order is affirmed, without costs or disbursements.
The plaintiff established a reasonable excuse for her delay in serving a bill of particulars, and the verified bill demonstrates the merits of the action. Accordingly, it was not an improvident exercise of discretion to deny the defendant's motion to preclude the plaintiff from offering evidence at trial ( see, Elliot v New York City Hous. Auth., 187 A.D.2d 410; Darrell v Yurchuk, 174 A.D.2d 557). However, under the circumstances, the denial of the defendant's motion should have been conditioned upon an appropriate payment by the plaintiff's attorney to the defendant to help offset the expenses incurred by the defendant in moving to preclude the plaintiff from offering evidence at trial. Balletta, J.P., Rosenblatt, Pizzuto, Joy and Altman, JJ., concur.