Apparel Trimming Corp. v. B & R Textile Corp. , 422 N.Y.S.2d 699 ( 1979 )

— Order, Supreme Court, New York County, entered May 4, 1979, is modified, in the exercise of discretion, to condition the granting of plaintiff-respondent's motion to vacate a prior order of preclusion upon payment, within 20 days after service of a copy of the order entered hereon, by the attorney for plaintiff-respondent personally of $500 costs to defendant-appellant, otherwise affirmed, with costs and disbursements of this appeal, to be paid by plaintiff-respondent to defendant-appellant, and in default of the payment of all such costs, as aforesaid, the order appealed from is reversed, in the exercise of discretion, and the motion to vacate the order of preclusion is denied, with costs and disbursements of this appeal, to be paid by plaintiff-respondent to defendant-appellant. The excuse for inordinate delay in responding to the demand for the bill may be said to be plausible but barely adequate. No reason is given for not advancing that explanation at the time that it was discovered that compliance with the demand could not be made timely instead of waiting until actual preclusion had been ordered and the case assigned to a trial part. In these circumstances we have imposed the stated sanction. Concur — Fein, J. P., Sullivan, Markewich, Silverman and Ross, JJ.