KLEINBERG ELECTRIC INC v. [And A Third-Party Action.] (1998)

Order, Supreme Court, New York County (Jane Solomon, J.), entered April 8, 1997, and judgment of the same court and Justice, entered April 16, 1997, which, inter alia, precluded defendant City of New York from offering evidence at trial of particulars not timely provided in response to plaintiff's demand dated September 12, 1994, unanimously reversed to the extent appealed from, on the law and facts, without costs or disbursements, and the motion to preclude denied on condition that defendant City of New York pay $1500 to plaintiff's attorneys within 45 days of the date of this order.   Appeal from order, same court and Justice, entered on or about June 20, 1997, which, insofar as appealable, denied the City's motion for leave to renew, unanimously dismissed, without costs or disbursements, as academic, in view of the above disposition.

Although defendant City was admittedly late in furnishing the bill of particulars in response to plaintiff's demands, there was no court order extant ordering it to furnish the bill.   Thus, the drastic sanction of preclusion should not have been invoked by the Supreme Court (see, Sieden v. Copen, 170 A.D.2d 262, 565 N.Y.S.2d 803).   However, plaintiff's attorneys incurred expense and were inconvenienced by the City's delay, and, accordingly, we impose the above condition.

MEMORANDUM DECISION.