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Briscuso v. Edison Parking Corp.

222 A.D.2d 328 Court N.Y. App. Div. Decision date 1995-12-21 English

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p. 328
Frank Briscuso, as Executor of Mary Garnas, Also Known as Mary E. Garnas, Deceased, Respondent, v Edison Parking Corp. et al., Appellants.
[635 NYS2d 615]

—Order, Supreme Court, New York County (Carol Arber, J.), entered on or about May 2, 1995, which granted defendants’ motion for preclusion unless plaintiff served a bill of particulars within 60 days of the court’s order, modified, on the law, to make preclusion unconditional, and otherwise affirmed, without costs.

There being a conflict between the court’s decision, which grants preclusion unconditionally, and its order, which grants preclusion conditionally, the decision controls, and the order should be resettled accordingly (DiProspero v Ford Motor Co., 105 AD2d 479 , 480). Concur — Rosenberger, J. P., Rubin, Asch and Mazzarelli, JJ.

Kupferman, J., dissents in a memorandum as follows: I would remand to the IAS Judge.

The IAS Judge obviously had second thoughts on the matter and should be the one to make the choice.

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