Opinion
March 22, 1971
In an action for an injunction and damages, upon the ground of alleged acts in restraint of trade, etc., plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Dutchess County, dated May 18, 1970, as, upon renewal of her prior motion to be relieved of an order of preclusion and to direct respondents to accept her bill of particulars, denied the renewed motion. Order reversed insofar as appealed from, with $10 costs and disbursements, and motion granted. The bill of particulars shall be served within 20 days after entry of the order to be made hereon. We are of the opinion that on the record before us plaintiff has shown that her case is meritorious, that she is not guilty of gross laches or an inexcusable disregard of the order of preclusion and that the delay was not unduly prejudicial to respondents. Consequently, we feel that Special Term improvidently exercised its discretion. We are also of the opinion that the present motion, while characterized by the parties as one for "reargument", actually was a new motion based upon new facts and additional papers. Martuscello, Acting P.J., Latham, Christ, Brennan and Benjamin, JJ., concur.