Crescenzo v. McCabe Powers Body Co.

In a third-party action, third-party defendant, Long Island Lighting Company (LILCO), served a demand for a verified bill of particulars on the third-party plaintiff, Cascade Corporation, on February 23,1981. Thereafter, by notice of motion dated May 13, 1981, LILCO moved, inter alia, for an order of preclusion based on the failure of Cascade to serve the bill of particulars. Trial Term (Underwood, J.) granted a 20-day conditional order of preclusion on October 19, 1981. Cascade’s failure to comply with the order of Justice Underwood resulted in the order of final preclusion appealed from. Cascade has failed to establish a reasonable excuse for such failure or make a prima facie showing of merit to its claims (see, Bailey v North Shore Univ. Hosp., 91 AD2d 967, affd 59 NY2d 748). Furthermore, LILCO has demonstrated prejudice in the inordinate delay involved and in its surprise when counsel for Cascade, in outlining his position after the jury was selected, set forth for the first time a claim of abuse of machinery. In these circumstances, the order appealed from constituted a proper exercise of the court’s discretion. 620 We have considered the parties’ remaining contentions and find them to be without merit. Mangano, J. P., Gibbons, Bracken and Niehoff, JJ., concur.