Posada v Sendowski

[*1] Posada v Sendowski 2010 NY Slip Op 50942(U) [27 Misc 3d 140(A)] Decided on May 26, 2010 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 26, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Shulman, JJ
570156/10.

Raymond Posada, Estella Posada and Ramon Posada, Plaintiffs-Appellants,

against

Janus Sendowski, Marble Hill Partners, LLC and Everway Contracting Corp., Defendants-Respondents.

Plaintiffs appeal from an order of the Civil Court of the City of New York, New York County (Tanya R. Kennedy, J.), entered March 31, 2009, which granted defendants' motion to dismiss the complaint on the ground that plaintiffs failed to comply with a prior order requiring plaintiffs' to serve a supplemental bill of particulars.

Per Curiam.

Order (Tanya R. Kennedy, J.), entered March 31, 2009, reversed, with $10 costs, motion denied, and plaintiffs' complaint, as limited by the order of Civil Court (Arthur F. Engoron, J.), dated December 10, 2008, reinstated.

Plaintiffs substantially complied with the prior order (Kenney, J.) requiring them to provide a supplemental bill of particulars to defendants. Specifically, plaintiffs' supplemental bill of particulars was sufficiently responsive to defendants' demand regarding plaintiffs' alleged damages. Therefore, defendants' motion to dismiss the complaint based on plaintiffs' failure to comply with the prior order should have been denied (see generally Gomes v Valentine Realty, LLC, 32 AD3d 699 [2006]; Papis v St. Vincent's Med. Ctr. of Richmond, 227 AD2d 601 [1996]). We also note the absence of any showing that plaintiffs' conduct was willful or contumacious.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: May 26, 2010