Opinion
October 29, 1970
Appeal from the Monroe Special Term.
Present — Del Vecchio, J.P., Marsh, Moule, Bastow and Henry, JJ.
Order unanimously reversed, without costs, and motion denied. Memorandum: In this mechanic's lien foreclosure action, defendants Lane and Seaboard appeal from an order of Supreme Court, Monroe County, entered August 11, 1969, vacating a prior order dated December 20, 1965, which required plaintiff to supply certain information sought in defendants' demand for a bill of particulars not later than 20 days after entry of the order or otherwise be precluded. The same defendants also appeal from an order of Supreme Court, Monroe County, entered May 2, 1969, vacating a prior order dated July 6, 1966, which required plaintiff to supply certain information requested in defendants' demand for a bill of particulars not later than 30 days prior to the trial of the action. Defendants' counsel wrote to plaintiff's counsel on July 13, 1966, August 2, 1966 and November 8, 1966 requesting the information which the court had ordered plaintiff to supply. These letters were disregarded. Plaintiff's motions to be relieved from the orders of December 20, 1965 and July 6, 1966 were not made until the trial of the case had been started on April 9, 1969 and a mistrial granted. The mistrial resulted when defendants objected to plaintiff's giving testimony relating to the items which had not been furnished in compliance with the then existing orders. Plaintiff in support of its motions to vacate the orders of December 20, 1965 and July 6, 1966 sought to explain its neglect to comply with them by showing that the file had previously been handled by an attorney other than the one trying the case, and that trial counsel had inadvertently overlooked the presence of the order of July 6, 1966 and, further, that plaintiff was unable to supply the information required until after the mistrial when plaintiff's counsel discovered its existence by reason of fortuitous circumstances. In opposing the application, defendants set forth that the information sought concerned the ownership and use of trucks on a construction job; that some of the trucks were owned by plaintiff and some by a third party but that defendants had no idea who owned them. The circumstances upon which plaintiff here relies are neither extraordinary nor exceptional. In Gonsa v. Licitra ( 6 A.D.2d 755) this court stated: "We have on several occasions made it clear that orders of preclusion for failure to serve bills of particulars in negligence actions may not be disregarded with impunity. In the absence of extraordinary and exceptional circumstances, which are not established by the affidavits in this case, we consider it an abuse of discretion to grant relief from a preclusion order." We have applied that rule in numerous cases including Schultz v. Kobus ( 15 A.D.2d 382), Massik v. Zimmerman ( 33 A.D.2d 894) and Clements v. Peters ( 33 A.D.2d 1096).