Opinion
September 29, 1970
Order entered September 2, 1969, denying an unconditional order of preclusion and granting plaintiff a final opportunity to comply with a prior order purporting to give plaintiff a "final" chance to serve a proper bill of particulars, unanimously modified on the law and in the exercise of discretion so as to grant plaintiff the right to serve a bill of particulars upon condition that plaintiff pay to defendant-appellant the sum of $250 costs within 20 days after service upon him of a copy of this order by defendant-appellant and, as so modified, the order is affirmed, without costs and without disbursements. We feel that Special Term was unduly lenient in not imposing terms for permitting plaintiff a final opportunity to supply a proper bill of particulars despite his failure to serve such a bill as directed by the court on several prior occasions.
Concur — Capozzoli, J.P., Markewich, Nunez and Steuer, JJ.