REICHARD WILLIAMS 14 v. MILLER ELECTRIC MANUFACTURING CO (1999)

Supreme Court, Appellate Division, Fourth Department, New York.

Matter of Kathleen REICHARD-WILLIAMS, as Administratrix of the Goods, Chattels and Credits of John Williams, Jr., Deceased, Kathleen Reichard-Williams, Individually, and Brittany Lynne Williams, an Infant Under 14 Years of Age, by her m/n/g Kathleen Reichard-Williams, Plaintiffs-Appellants, v. MILLER ELECTRIC MANUFACTURING CO., Weldcraft, Inc., Defendants-Respondents, et al., Defendant.
Weldcraft, Inc., Third-Party Plaintiff, v. Fulton Thermal Corporation, Third-Party Defendant-Respondent.
Miller Electric Manufacturing Co., Third-Party Plaintiff, v. Fulton Thermal Corporation, Third-Party Defendant-Respondent. (Appeal No. 1.)

Decided: October 01, 1999

PRESENT: LAWTON, J.P., HAYES, WISNER, PIGOTT, JR., and BALIO, JJ.

Carol R. Finocchio, New York City, for plaintiffs-appellants. Janet D. Callahan, Syracuse, for defendant-respondent and third-party plaintiff Miller Electric Manufacturing Co. Sherry R. Bruce, Syracuse, for defendant-respondent and third-party plaintiff Weldcraft, Inc.

Plaintiffs appeal from an order that granted, inter alia, the motion of defendant Weldcraft, Inc. and the cross motion of defendant Miller Electric Manufacturing Co. to dismiss the complaint pursuant to CPLR 3126 unless plaintiffs furnished supplemental responses to a demand for a bill of particulars within 30 days of the date of the order. Plaintiffs contend for the first time on appeal that Supreme Court erred in granting a conditional order of dismissal because no willful or contumacious conduct had been shown and thus have not preserved that contention for our review (see, Fischer v. Zepa Consulting A.G., 263 A.D.2d 946, 695 N.Y.S.2d 456; Gorman v. Ravesi, 256 A.D.2d 1134, 684 N.Y.S.2d 386). The contention of plaintiffs that they could not provide a bill of particulars without first deposing defendants has no merit. CPLR 3106 does not provide for a particular order in which to conduct depositions.

Order unanimously affirmed without costs.

MEMORANDUM:

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