Sher v. Pellicano

In an action to recover damages, inter alia, for malicious prosecution, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Floyd, J.), dated December 29, 1993, as denied that branch of their motion which was for an order of preclusion. Ordered that the order is affirmed insofar as appealed from, with costs. Pursuant to an order dated October 6, 1992, the plaintiffs had timely served a supplemental bill of particulars which was rejected by the defendants as inadequate and not responsive. The defendants then moved for an order of preclusion. 370 The plaintiffs served additional responses while the defendants’ motion for an order of preclusion was pending. The court did not err in denying the defendants’ motion, particularly as there was no evidence that the delay by the plaintiffs was willful or that the delay prejudiced the defendants (see, e.g., Bard-Rock Corp. v Corutky, 110 AD2d 611). Contrary to the defendants’ contention, the order dated October 6, 1992 was not a conditional order of preclusion which entitled them to a final order of preclusion upon the plaintiffs’ failure to timely comply with the order. The order merely required the plaintiffs to serve additional responses, and it did not provide that they would be precluded from offering evidence if the time limitation was not met (see, e.g., Oliveri v Carter, 194 AD2d 525; Dugan v Seymour, 121 AD2d 596). Sullivan, J. P., O’Brien, Ritter and Goldstein, JJ., concur.