Grace v. Grace , 74 A.D.2d 896 ( 1980 )

In an action to recover damages for personal injuries, plaintiff appeals, as limited by her brief from so much of an order of the Supreme Court, Westchester County, entered July 11, 1979, as, upon renewal and reargument, adhered to a prior order of the same court, dated April 19, 1979, denying her motion to extend the time alloted to serve a bill of particulars or to deem it as having been timely served. Order reversed insofar as appealed from, without costs or disbursements, and motion granted to the extent that the bill of particulars annexed to plaintiffs moving papers is deemed to have been timely served, on condition that the plaintiffs attorneys personally pay a total of $250 to defendants within 20 days after service upon them of a copy of the order to be made hereon, together with notice of entry thereof; in the event that the condition is not complied with, then order affirmed insofar as appealed from, with $50 costs and disbursements. After considering all the factors set forth in Batista v St. Luke’s Hosp. (46 AD2d 806) it is our opinion that Special Term should have granted plaintiffs motion for an extension of the time allotted in a conditional order of preclusion within which to serve her bill of particulars. The record fails to indicate that defendants suffered any prejudice by reason of the two-month delay in serving the bill of particulars, which delay was occasioned by law office failure. The affidavit of the plaintiff establishes that her action has merit, that she had no intent to abandon it, and that she was severely injured in the accident. Under such circumstances, the default should have been opened upon the condition above stated. Hopkins, J. P., Damiani, Titone and Mangano, JJ., concur.