Morales v. Berk Trade School , 91 A.D.2d 525 ( 1982 )

— Order, Supreme Court, New York County (Williams, J.), entered on January 5, 1982, which vacated its prior orders of preclusion for failure to serve a bill of particulars on condition plaintiff’s attorney pay defendant $100 costs, modified, on the law, on the facts and in the exercise of discretion, so as to condition said vacatur upon the payment by plaintiff’s attorneys of the sum of $500 within 30 days after the date of entry of the order hereon and otherwise affirmed. In the event of noncompliance with the above, said order is reversed, on the law, the facts and in the exercise of discretion, the motion to vacate the preclusion orders denied and said orders of preclusion reinstated. Defendant-appellant shall recover of plaintiff-respondent $50 costs and disbursements of this appeal. Defendant appeals from the order of the Supreme Court entered January 5,1982, which vacated a prior order of preclusion entered by the same Judge for failure to file a supplemental bill of particulars on the condition that plaintiff’s attorney pay to defendant $100 in costs. The immediate reason for the failure to comply with the court’s order directing a supplemental bill of particulars is set forth in an affidavit by plaintiff’s counsel. Throughout the relevant period plaintiff’s counsel labored under the persistent misunderstanding that defendant sought, and secured, an order directing the service of a bill of particulars that had already been served. His affidavit asserts, and there seems no reason to doubt its accuracy, that he had not been aware of the motion served on his office demanding a supplemental bill of particulars, and accordingly had believed that the conditional order of preclusion related to an earlier motion by the defendant’s attorney prior to the somewhat tardy service of plaintiff’s original bill. Pertinently, the wording of the conditional order of preclusion would not have alerted counsel to his error. In evaluating this undoubted lapse of plaintiff’s counsel, we think it relevant that in the preceding year counsel had been hospitalized three times, twice in connection with a heart condition and once for osteomyelitis of the spine. It is a reasonable conclusion that this lapse on the part of a lawyer of 20 years experience occurred during a period of reduced work activity, and at a time when he had become more dependent than was his custom on his office staff. The papers submitted below include a detailed affidavit of merits by the plaintiff. The injury sustained was substantial. The bill of particulars ultimately submitted is exemplary. No prejudice to the defendant is disclosed. We are not persuaded that the decision of the New York Court of Appeals in Eaton v Equitable Life Assur. Soc. of U. S. (56 NY2d 900) precludes any discretion under the totality of the circumstances presented to permit, with appropriate conditions, the vacating of the default. However, the delay and the additional expense and effort required of defendant’s counsel merit a more severe sanction than that fixed at Special Term. We accordingly modify the order appealed from to impose as a condition the payment by plaintiff’s counsel of costs in the sum of $500. Concur — Sandler, J. P., Asch and Silverman, JJ.