| Panagiotou v Samaritan Vil., Inc. |
| 2009 NY Slip Op 07811 [66 AD3d 979] |
| October 27, 2009 |
| Appellate Division, Second Department |
| Dimitrius Panagiotou et al., Appellants, v SamaritanVillage, Inc., et al., Respondents, et al., Defendant. |
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In an action to recover damages for injury to property, the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Queens County (Weiss, J.), enteredJuly 30, 2008, as granted the motion of the defendants Samaritan Village, Inc., SamaritanFoundation, Inc., and P.J. Wyer Construction, Inc., and the separate motion of the defendantWerfel & Associates, LLC, for summary judgment dismissing the complaint based upon theplaintiffs' failure to serve a bill of particulars as directed by a conditional order of preclusionentered February 25, 2008.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs to therespondents appearing separately and filing separate briefs.
The plaintiffs failed to serve a responsive bill of particulars within the 30-day time limit setin the conditional order of preclusion entered February 25, 2008. The order, therefore, becameabsolute (see Gilmore v Garvey, 31AD3d 381 [2006]; Echevarria vPathmark Stores, Inc., 7 AD3d 750, 751 [2004]). To avoid the adverse impact of theconditional order of preclusion, the plaintiffs were required to demonstrate a reasonable excusefor their failure to comply and a meritorious cause of action (see State Farm Mut. Auto. Ins. Co. v Hertz Corp., 43 AD3d 907,908 [2007]; Echevarria v Pathmark Stores, Inc., 7 AD3d at 751). The plaintiffs failed tomake such a showing. Since the order of preclusion prevents the plaintiffs from establishing aprima facie case, the Supreme Court properly granted the defendants' separate motions forsummary judgment dismissing the complaint (see Calder v Cofta, 49 AD3d 484 [2008]; State Farm Mut.Auto Ins. Co. v Hertz Corp., 43 AD3d at 908). Mastro, J.P., Dillon, Dickerson, Belen andLott, JJ., concur.