Opinion
December 30, 1975
Appeal from an order of the Supreme Court at Special Term, entered January 21, 1974 in Schenectady County, which denied a motion to dismiss the complaint. A brief chronology of events is necessary to demonstrate why the order denying the motion to dismiss the complaint must be reversed. A 30-day conditional order of preclusion was entered against plaintiffs on October 5, 1972 for failure to comply with a demand for a bill of particulars dated June 26, 1972. Defendant's attorney authorized two extensions of time for compliance, but ultimately was required to advise plaintiffs' attorney, in writing, on December 27, 1972 that no further extension would be permitted beyond January 10, 1973. A year went by and no bill of particulars was forthcoming. On February 14, 1974 just prior to the trial of the within action and another case with which it was joined, plaintiffs served their bill of particulars. In his attempt to excuse his neglect, plaintiffs' attorney relies upon the unsworn statements of two physicians indicating counsel's medical disability from June 16, 1973 to August 3, 1973. There is no explanation for the otherwise protracted inactivity on the part of plaintiff's counsel. To grant relief under these circumstances is, in our view, a clear abuse of discretion (Paris v Poticha, 1 A.D.2d 277). The unhappy situation in which these plaintiffs now find themselves is due to the failures of their own counsel. The order appealed from should be reversed and judgment granted to the defendant (Le Frois Foods Corp. v Aetna Ins. Co., 47 A.D.2d 994; Wolkowicki v Rizzo, 43 A.D.2d 838; Clements v Peters, 33 A.D.2d 1096). Order reversed, on the law and the facts, and complaint dismissed, without costs. Herlihy, P.J., Kane and Reynolds, JJ., concur; Greenblott and Sweeney, JJ., dissent and vote to affirm in the following memorandum by Greenblott, J.
We respectfully dissent. Special Term properly exercised its discretion and permitted a late filing of a bill of particulars in view of the letters from attending physicians verifying the fact that plaintiffs' attorney was totally disabled for a period of time as a result of physical disability.