Barnett v. Fleig

—In an action to recover damages for personal injuries, etc., the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (McCarty, J.), dated November 23, 1993, as granted the plaintiffs’ motion to vacate a prior order of the same court, dated September 3, 1993, dismissing the complaint on the condition that the plaintiffs’ counsel pay the defendant’s counsel the sum of $1,000 in costs. Ordered that the order dated November 23, 1993, is reversed insofar as appealed from, on the law and as a matter of discretion, with costs, and the order dated September 3, 1993, dismissing the complaint, is reinstated. The plaintiffs failed to provide a reasonable excuse for their failure to respond to the defendant’s demands for a bill of particulars and for their failure to comply with two orders of the Supreme Court directing them to serve such a bill. Thus, the Supreme Court improvidently exercised its discretion by vacating its prior order dated September 3, 1993, dismissing the complaint (see, Bender & Bodnar v Nankin, 186 AD2d 524; Donovan v Getty Petroleum Corp., 174 AD2d 706). Bracken, J. P., Rosenblatt, Lawrence, Krausman and Goldstein, JJ., concur.