Costigan v. Manhattan & Bronx Surface Transit Operating Authority , 68 A.D.2d 844 ( 1979 )

Order, Supreme Court, Bronx County, entered May 9, 1978, which granted plaintiff’s motion for summary judgment dismissing defendant’s affirmative defenses and denied defendant’s cross motion to modify a prior conditional order of preclusion as to permit late service of a bill of particulars is reversed, on the law and in the exercise of discretion and plaintiff’s motion for partial summary judgment is denied, the cross motion to modify the conditional order of preclusion is granted on condition that defendant serve a responsive bill of particulars and pay the plaintiff $250 costs within 30 days of the receipt of a copy of this court’s order. Costs and disbursements of the appeal are awarded to plaintiff. In the event defendant fails to abide by the above conditions, the order is affirmed, with costs. In this personal injury action defendant’s answer contained two affirmative defenses. Plaintiff served a demand for a bill of particulars relative to the affirmative defenses. Approximately six months later plaintiff moved for an order of preclusion because defendant had not responded. Defendant contended that the motion was marked "No opposition” because it intended to comply with the demand. Thereafter, the court ordered defendant to comply within 30 days of service of a copy of the order. It failed to do so. Plaintiff next moved for summary judgment dismissing the two affirmative defenses since defendant was precluded from establishing the defenses and hence no triable issue existed. Defendant cross-moved for modification of the court’s order to permit service of the bill of particulars. Defendant contends that clerical error in its counsel’s office was responsible for the misfiling of the court’s order directing it to serve the bill of particulars. In granting the motion for summary judgment the court found that defendant’s failure to serve the bill of particulars was inexcusable. Matter of Raichle, Moore, Banning & Weiss v Commonwealth Fin. Corp. (14 AD2d 830, 831) postulates that "It is the general policy of the courts to permit actions to be determined by a trial on the merits wherever possible and for that purpose a liberal policy is adopted with respect to opening default judgments in furtherance of justice to the end that the parties may have their day in court to litigate the issues.” In balancing the equities we must be mindful that once plaintiff’s motion alerted defendant to its oversight it acted with reasonable speed. Less than one year lapsed from joinder of issue to summary judgment. Defendant’s excuse for loss of the order of conditional preclusion, considering the nature and size of the defendant’s enterprise, is entirely plausible. Were plaintiff to establish that delay had prejudiced her unfairly the decision of this court might be different. However, plaintiff has failed to establish such prejudice. Wé do not condone the laxity of defendants (Schupak Rosenfeld & Fischbein v Campanelli Inds., 51 AD2d 699), and have, therefore, attached appropriate conditions. Concur—Birns, J. P., Evans, Sullivan and Silverman, JJ.