Nappi v. Bush Terminal Building Co.

In an action to recover damages for wrongful death and for conscious pain and suffering, the appeal is from an order granting respondent’s motion to vacate an order precluding her from giving any evidence upon the trial of the action with respect to matters as to which the appellant had demanded a bill of particulars and directing her to furnish the particulars and hospital records. Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs. The preclusion order was made on consent and by its terms was conditioned on respondent’s failure to serve the bill of particulars within 60 days after service of the order. The motion to vacate the order was not made until about 2 years after the making of the order, about 2% years after the service of appellant’s demand for the particulars, more than 4 years after the happening of the accident, and after appellant had made its second motion to dismiss the action for lack of prosecution. The only excuse proffered for having failed to serve the bill of particulars was the claimed refusal or failure by a certain hospital and a certain physician to comply with requests of respondent’s attorneys to supply information as to the intestate’s injuries. The demand tor the particulars requested many items of information other than the matter of injuries, and the delay constituted gross laches and inexcusable disregard of the condition of the precluding order (cf. Schmitt v. Pietrangelo, 285 App. Div. 1058; Mead v. Consolidated Metal Spinning & Stamping Co., 208 App. Div. 814). Under the circumstances, the granting of the motion was an improvident exercise of discretion. Nolan, P. J., Wenzel, Beldock, Murphy and Hallinan, JJ., concur.