Jawitz v. British Leyland Motor, Inc. , 72 Misc. 2d 594 ( 1972 )

Arnold G. Fraiman, J.

Motion by defendant for summary judgment in this action for personal injuries is denied. By order of August 30,1971 plaintiff was precluded from offering evidence for failure to serve a bill of particulars and on this motion plaintiff advances no cogent reasons to be relieved from the effect of that order. Defendant seeks summary judgment upon the ground that plaintiff has been precluded pursuant to the aforesaid order from presenting sufficient evidence on the trial to establish a prima facie case. It relies upon Clements v. Peters, 33 A D 2d 1096 [4th Dept., 1970]) which is squarely in point. However, the rule in this Department as set forth in Israel v. Drei Corp. (5 A D 2d 987 [1st Dept., 1958]), is to the contrary. In that case, the court held (p. 987) that “ In an action to recover for personal' injuries alleged to have been caused by defendant’s negligence, . the existence of an order of preclusion against the plaintiff does not make available to defendant summary judgment”. Although the Second and Third Departments have specifically declined to decide whether they will adopt the rule in the Israel case (Jersey v. Glode Requa Coal & Lbr. Co., 13 A D 2d 507 [2d Dept., 1961] ; Moscowitz v. Garlock, 23 A D 2d 943 [3d Dept., 1965]), and as noted, the Fourth Department has taken a contrary position, the _court is constrained to follow the rule as laid down in this Department and deny the relief requested by defendant.