| Callaghan v Curtis |
| 2008 NY Slip Op 01291 [48 AD3d 501] |
| February 13, 2008 |
| Appellate Division, Second Department |
| Janet Callaghan, Respondent, v W. Robert Curtis et al.,Appellants. |
—[*1]
In an action, inter alia, to recover damages for breach of fiduciary duty, the defendantsappeal, as limited by their brief, from so much of an order of the Supreme Court, WestchesterCounty (LaCava, J.), entered June 1, 2006, as denied that branch of their motion which was forsummary judgment dismissing the complaint based upon the plaintiff's failure to comply with aconditional order of preclusion entered September 16, 2005.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the defendants' motion which was for summary judgment dismissing the complaint isgranted.
On September 16, 2005 the Supreme Court entered a conditional order precluding theplaintiff from introducing evidence at trial "as to all items for which particulars have beeninadequately or defectively furnished, to wit: causation and damages" unless, before October 7,2005, the plaintiff served a supplemental bill of particulars containing complete responses toparagraphs 4, 5, 9, and 10 of the defendants' demand. It is undisputed that the plaintiff's attorneyconsented to the conditional order of preclusion. Although the plaintiff timely served asupplemental bill of particulars, the defendants nevertheless moved, inter alia, for summaryjudgment dismissing the complaint, arguing that the content of the supplemental bill ofparticulars did not contain complete responses to paragraphs 4, 5, 9, and 10 of the defendants'demand, as required by the conditional order of preclusion. The Supreme Court denied thatbranch of the defendants' motion which was for summary judgment dismissing the complaint.We reverse the order insofar as appealed from.[*2]
Contrary to the conclusion reached by the SupremeCourt, the plaintiff's supplemental bill of particulars did not satisfy the requirements of theconditional order of preclusion, as the supplemental bill failed to provide any particulars withrespect to the nature of the plaintiff's claim for damages, as requested in items 4 and 9, and, withrespect to items 5 and 10 of the demand, merely referred to the initial bill of particulars, whichthe Supreme Court had already determined to be inadequate.
As a result of the plaintiff's failure to comply with the conditional order of preclusion, theorder became absolute (see Wilson vGalicia Contr. & Restoration Corp., 8 AD3d 560 [2004]; Goldsmith Motors Corp. vChemical Bank, 300 AD2d 440, 440-441 [2002]). To avoid the adverse impact of theconditional order of preclusion, the plaintiff was required to demonstrate an excusable defaultand a meritorious cause of action (seeGilmore v Garvey, 31 AD3d 381, 382 [2006]; Gutenplan v Dauman, 154 AD2d337, 337-338 [1989]). The plaintiff failed to sustain that burden. Accordingly, since the plaintiffwill be unable to establish a prima facie case, that branch of the defendants' motion which wasfor summary judgment dismissing the complaint should have been granted (see Gilmore vGarvey, 31 AD3d at 382; Cafaro vEmergency Servs. Holding, Inc., 11 AD3d 496, 498-499 [2004]; Jenkinson vNaccarato, 286 AD2d 420, 421 [2001]; Alphonse v UBJ Inc., 266 AD2d 171[1999]). Spolzino, J.P., Lifson, Santucci and Covello, JJ., concur.