November 4, 1983
Appeal from the Supreme Court, Monroe County, White, J.
Present — Hancock, Jr., J.P., Callahan, Denman, Green and Moule, JJ.
Order unanimously modified and, as modified, affirmed, without costs, and matter remitted to Supreme Court, Monroe County, for further proceedings, in accordance with the following memorandum: Plaintiff appeals from an order which conditionally granted defendant's motion for summary judgment based on plaintiff's default in serving a bill of particulars pursuant to a prior order of preclusion and which denied plaintiff's cross motion to compel defendant to accept service of its bill of particulars. The order conditioned summary judgment upon the results of a limited hearing to determine whether certain oral communications or correspondence, not in the moving papers, constituted an extension of time to serve a bill of particulars pending settlement negotiations. Defendant cross-appeals from that part of the order conditionally granting summary judgment contending that the order should have been absolute. Special Term properly conditioned granting summary judgment on the holding of a limited hearing to determine whether certain communications between the attorneys constituted an extension for service of the bill of particulars. Until the question of a time extension is resolved, a material issue of fact persists which precludes the granting of summary judgment (CPLR 3212, subds [b], [f]; see, also, Fantasia v Carpenters' Finger Lakes Dist. Council Welfare Fund, 73 A.D.2d 799). The issue of law office failure is also raised by plaintiff's appeal from the court's denial of its cross motion to compel acceptance of the bill of particulars. When this motion was decided, applicable case law provided that the trial courts were without discretion as a matter of law to excuse delay resulting from law office failure (see Eaton v Equitable Life Assur. Soc., 56 N.Y.2d 900; Barasch v Micucci, 49 N.Y.2d 594), and this rule was applied to bills of particulars (see Hatch v St. Joseph's Hosp., 93 A.D.2d 999; Suggs v Hrabb, 91 A.D.2d 819, 820). Since then, the Legislature has enacted CPLR 2005 (L 1983, ch 318, § 1) overruling Barasch/Eaton. Although the language of that amendment may not specifically apply to bills of particulars, the amendment does undermine the Barasch/Eaton rationale. Therefore, to the extent that our prior cases applied the Barasch/Eaton standard to nonpleading situations, we hereby overrule those cases. The order is thus modified to provide that in the event no waiver or extension is found Special Term should reconsider plaintiff's cross motion under pre- Barasch standards (see, e.g., Hubley v Nationwide Mut. Fire Ins. Co., 65 A.D.2d 946; Le Frois Foods Corp. v Aetna Ins. Co., 47 A.D.2d 994).