Lagattuta v. Plesur

Michael Catalano, J.

Plaintiff seeks an order compelling defendant to accept a bill of particulars “ on the ground that the Order of Preclusion was not served as provided in said order.”

The order of preclusion of Mr. Justice Kramer granted January 19, 1965 states, “ that the motion of the defendant to preclude the plaintiff from giving any evidence on the trial with respect to allegations or matters in the said defendant’s demand for a bill of particulars is granted, unless the plaintiff within thirty (30) days after service upon the plaintiff’s attorneys of a copy of this order, with notice of entry thereof, has served a proper hill of particulars in compliance with the demand for said bill of particulars.” (Emphasis supplied.)

‘ ‘ An appeal as of right must be taken within thirty days after service upon the appellant of a copy of the judgment or order appealed from and written notice of its entry ” (CPLR 5513, subd. [a]; emphasis supplied.)

Here, the preclusion order affects a substantial right (CPLR 5019, subd. [a]); it equates a dismissal of the action. The time to appeal therefrom is still running. It contained no notice of entry. Therefore, the time to serve a hill of particulars never started to run, so the period in which to serve it has not run. The return of the bill of particulars on April 13,1965 by defendant’s attorneys was not justified; their cover letter aptly put it thus: 1 ‘ Due to the unusual circumstances of this lawsuit, we are not in a position to waive the provisions of the order.” Motion granted, without costs.