Appellate Division of the Supreme Court of New York, Fourth DepartmentFeb 23, 1973
41 A.D.2d 693 (N.Y. App. Div. 1973)

February 23, 1973

Appeal from the Erie Special Term.

Present — Goldman, P.J., Witmer, Moule, Cardamone and Simons, JJ.

Order unanimously reversed, without costs, and motion denied. Memorandum: The trial court granted defendant Joseph Abbinanti's motion to compel appellants to accept a bill of particulars more than one year after the preclusion order was entered and over one and one-half years after the demand for particulars was made. The only excuse offered by respondent for this delay was a law office failure in that he thought that he had served the husband and wife's bill of particulars together. In fact, only the wife's bill had been sent. Respondent's attorney was served with a 20-day preclusion order in the husband's action after he had served the wife's bill of particulars and this should have alerted him to the problem. We have repeatedly held that law office failures do not excuse a default. ( RVA Trucking v. Lane Constr. Corp., 35 A.D.2d 773; Gonsa v. Licitra, 6 A.D.2d 755. ) Furthermore, there is no proper affidavit of merits accompanying the motion papers. The order of Special Term was an improvident exercise of discretion.