SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
June 24, 1969
SUZANNE LYNCH, AN INFANT, BY VIRGINIA LYNCH, AS NATURAL GUARDIAN, ET AL., RESPONDENTS,
SIAM'S PONY FARM, INC., APPELLANT
Gibson, P. J., Herlihy, Reynolds, Staley, Jr., and Greenblott, JJ., concur in memorandum by the court.
Memorandum by the Court. Appeal from an order of the Supreme Court which granted plaintiffs' application to be relieved from the effect of a preclusion order and permitted service of a late bill of particulars. The moving papers are legally deficient in that, among other things, they do not include an affidavit of merits (Sortino v. Fisher, 20 A.D.2d 25, 31-32; D'Antonio v. Fitzgerald, 11 A.D.2d 804) nor a legal and adequate excuse for noncompliance with the conditional preclusion order (Sortino v. Fisher, supra, p. 29; Abramowitz v. Berger, 20 A.D.2d 903). Under all the circumstances, including, in particular, the plaintiff Suzanne Lynch's infancy, our reversal is without prejudice to a new application upon an adequate and complete factual showing of all the prerequisites to an application of this nature.
Order reversed, on the law and the facts, and motion denied, without costs, and without prejudice to a new application in accordance with this memorandum decision.
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