ALOMAR v. Lily Truck Leasing Corp., Defendant. (1997)

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

Tomas Guerrios ALOMAR, Plaintiff-Appellant, v. MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY, Defendant-Respondent, Lily Truck Leasing Corp., Defendant.

Decided: November 13, 1997

Before MURPHY, P.J., and ROSENBERGER, ELLERIN, RUBIN and TOM, JJ.

Philip F. Menna, for Plaintiff-Appellant. Lawrence Heisler, for Defendant-Respondent.

Order, Supreme Court, New York County (Robert Lippmann, J.), entered on or about January 30, 1997, which granted defendant-respondent's motion for preclusion and dismissal, and, order, same court and Justice, entered on or about April 29, 1997, which granted plaintiff's motion to reargue and renew, and upon reargument, adhered to its prior decision, unanimously affirmed, without costs.

The court properly granted unconditional preclusion and dismissal where plaintiff failed to offer an adequate excuse for his seven-year delay in providing a bill of particulars, and failed to demonstrate the merits of his claim as against defendant-respondent (see, Canter v. Mulnick, 93 A.D.2d 751, 461 N.Y.S.2d 305, affd. 60 N.Y.2d 689, 468 N.Y.S.2d 462, 455 N.E.2d 1257). The remedy provided by the court was appropriate under the circumstances (see, former CPLR 3042[c] ). We have reviewed plaintiff's remaining arguments and find them to be without merit.

MEMORANDUM DECISION.

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