Schoonmaker v. Liberty Loomis Hospital , 17 Misc. 2d 924 ( 1958 )

Isadore Bookstein, J.

Plaintiffs move to be relieved of an order of preclusion. Defendant moves to dismiss the action for lack of prosecution.

Failures to comply with demands for bills of particulars have created a veritable avalanche of motions for orders of preclusion. In this district the number of such motions in a year reaches four figures. A drastic remedy is absolutely essential to eliminate the great and unnecessary burden which the failures to honor demands for bills of particulars have placed upon the courts. One remedy is to deny applications to be relieved from orders of preclusion, except in the most extraordinary situation.

In this case, the delay in seeking relief from the order of preclusion is so great, as would ordinarily demand a denial of the relief sought. However, the reasons for the delay are exceptional and extraordinary. These stem from the mental condition of one of the plaintiffs. The circumstances are such that a denial of the relief sought would, I think, be an abuse of discretion.

Accordingly, plaintiffs’ motion is granted.

So far as defendant’s motion is concerned, the delay in filing a note of issue is, of course, correspondingly great. Yet the filing of a note of issue would have served no purpose without service of the bill of particulars and the completion of the examination before trial.

For the same reasons which prompt the granting of plaintiffs’ motion, the motion of defendant is denied, without prejudice to a renewal thereof, if plaintiffs fail promptly to serve the bill of particulars, complete the examination before trial and file a note of issue.

Submit order.