Opinion
June 8, 1992
Appeal from the Supreme Court, Kings County (Pizzuto, J.).
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
We disagree with the defendant's contention that the court should have granted its cross motion for a final order of preclusion based upon the plaintiff's failure to comply with its demand for a bill of particulars. It is unclear whether the conditional order was ever served upon the plaintiff's attorneys. In any event, shortly after the court granted the conditional order of preclusion the plaintiff died. The record reveals that an administrator was subsequently appointed and substituted in this action in his stead. Moreover, service of the bill of particulars was hindered by the defendant's failure to provide the plaintiff's attorneys with a copy of the hospital record (see, Smith v. Palmieri, 103 A.D.2d 739). Accordingly, the court did not improvidently exercise its discretion in permitting the plaintiff additional time to serve a bill of particulars (cf., Donovan v. Getty Petroleum Corp., 174 A.D.2d 706; White v Leonard, 140 A.D.2d 518). Thompson, J.P., Lawrence, Copertino and Santucci, JJ., concur.