Sandale Cooperative Apartments, Inc. v. Sandale Construction Corp. (4 A.D.2d 970, 1957)

In an action to recover damages for breach of contract, the appeal is from so much of an order as granted respondent’s cross motion to open its default in serving a bill of particulars. Order modified by striking therefrom the ordering paragraphs and by substituting therefor a paragraph to the effect that the cross motion is denied in all respects. As so modified, order insofar as appealed from affirmed, with $10 costs and disbursements to appellant. The action is to recover for damages for alleged breach of a contract made in November, 1952 for the erection of an apartment house. Upon consent, an order was entered precluding respondent from offering on the trial any evidence with respect to matters as to which appellant had demanded a bill of particulars, unless a bill in accordance with the demand was furnished within a specified time. The instant cross motion was made about a year after the expiration of said period, the excuse for the delay being, in effect, that respondent until that time was doubtful whether it had a valid cause of action. This is not a reasonable excuse for such a long delay in view of the outstanding order of preclusion. Nor is there a showing of merit in the cause of action. In the circumstances, it was an improvident exercise of discretion to open the default (Nappi v. Bush Term. Bldg. Co., 2 A D 2d 861). Nolan, P. J., Wenzel, Murphy, Ughetta and Hallinan, JJ., concur.