Lesko v. Kelleher

Appeal from an order of the Supreme Court at Special Term which denied defendant’s application to modify a previous decision. The ¡defendant in this simple contract action, about 11 months after the filing of the note of issue, moved to amend his answer so as to plead the Statute of Frauds. Almost one year previously he had been served with plaintiff’s bill of particulars which stated, in response to his demand, that the contract was oral. At that time he was still entitled to serve an amended answer without permission. The motion was granted but neither then nor at any time thereafter did defendant enter an order or serve the amended answer. Some five months after the decision, defendant moved for a “ modification of the decision ” so as to extend the time for service of the amended answer. On January 3, 1968, Special Term denied the motion, stating: “ The dilatory tactics of the defendant, both in pleading and answering calendar calls, have delayed the trial of this ease for over a year. The plaintiff is entitled to have its day in court without further delay.” This appeal, on a simple 29-page record consisting solely of photocopies of papers, came on to be heard 13 months thereafter. Order affirmed, with costs. Gibson, P. J., Herlihy, Reynolds, Aulisi and Greenblott, JJ., concur in memorandum Per Curiam.