59 A.D.2d 938 | N.Y. App. Div. | 1977
In an action to recover damages for wrongful eviction, defendant Sherwood Associates appeals from so much of an order of the Supreme Court, Queens County, dated February 24, 1977, as denied its motion for summary judgment. Order reversed insofar as appealed from, on the law, with $50 costs and disbursements, and motion for summary judgment granted. Appellant moved for an order of summary judgment dismissing plaintiffs’ complaint and plaintiffs cross-moved (1) for reargument of a prior order of preclusion and (2) to dismiss the affirmative defense of lack of jurisdiction. Special Term denied appellant’s motion "in the interest of justice”; denied the branch of plaintiffs’ cross motion which sought reargument as moot; and directed a hearing as to the balance of the cross motion. Under the circumstances it was an improvident exercise of discretion for Special Term to grant relief to plaintiffs and to deny appellant’s motion. Plaintiffs have failed, in opposition to the motion under review, to demonstrate the existence of a meritorious cause of action. Moreover, "law office failure” or "law office inadvertence” of plaintiffs’ attorney is an insufficient reason to excuse an inordinate delay in the furnishing of the bill of particulars after service upon the attorney of an order of preclusion (see Wolkowicki v Rizzo, 43 AD2d 838; Klinger v Dudley, 40 AD2d 1078). Hopkins, J. P., Latham, Cohalan and Damiani, JJ., concur.
