Broder v. City of New York

Resettled order of the Supreme Court, New York County (Bruce McM. Wright, J.), entered February *41619, 1987, which, inter alia, granted defendant Mobil Oil Corp.’s and defendant Sea Travelers Boat Sales’s cross motions for a final order of preclusion, is unanimously modified, on the law and facts and in the exercise of discretion, to the extent of granting defendants’ cross motions for preclusion unless within 30 days from the date of entry of the order herein plaintiffs’ attorney pays to defendants the sum of $250, in which event the said cross motions are denied, and the order otherwise affirmed, without costs or disbursements.

We find that plaintiffs’ failure to provide additional particulars to defendants respecting liability was not willful. Since plaintiffs did comply, albeit not in a timely fashion, with the prior order of the Supreme Court, in serving a bill of particulars dated May 16, 1986, we feel that the sanction of preclusion imposed by the IAS court was too severe, and modify accordingly. Concur—Kupferman, J. P., Sullivan, Ross, Asch and Ellerin, JJ.