
    Alvin Kadan et al., Appellants, v Volkswagen of America, Inc., et al., Defendants, and Bertram Z. Kadan, Respondent.
   Kane, J.

Appeal from an order of the Supreme Court at Special Term (Williams, J.),. entered May 31, 1984 in Albany County, which granted defendant Bertram Z. Kadan’s motion for summary judgment dismissing the complaint as to him and denied plaintiffs’ cross motion to excuse them for failure to comply with a conditional order of preclusion.

On June 28,1980, plaintiff Alvin Kadan was allegedly injured in a one-car accident while he was a passenger in a Volkswagen Rabbit operated by defendant Bertram Z. Kadan (hereinafter defendant). This personal injury action ensued. In due course, defendant answered and served a demand for a bill of particulars. When the bill of particulars was not received within the time required by CPLR 3042 (a), defendant moved for an order of preclusion. Special Term granted a 20-day conditional order of preclusion, which order was served on December 13, 1983. Plaintiffs served their bill of particulars on January 18, 1984, some 11 days after the 20-day period. The service of the bill of particulars crossed in the mail with defendant’s notice of motion, dated January 16,1984, seeking summary judgment based on plaintiffs’ failure to comply with the preclusion order. Plaintiffs opposed the motion and requested that their 11-day delay be excused.

Special Term denied plaintiffs’ request to excuse their failure to comply with the preclusion order, finding that plaintiffs’ arguments were “less than compelling”. Accordingly, Special Term granted defendant’s motion for summary judgment dismissing the complaint as to him. Plaintiffs then took this appeal.

After conducting a review of the record, we reverse upon the condition that, within 20 days after entry of the order to be made herein, plaintiffs’ attorney personally pay $500 costs to defendant in addition to the costs of this appeal. The papers submitted by plaintiffs were sufficient to excuse the brief delay caused by law office failure (see, CPLR 2004, 2005; Batista v St. Luke’s Hosp., 46 AD2d 806; Siegel, NY Prac § 241, at 296-297 [1978]). We note that on this appeal, defendant for the first time asserts that the bill of particulars in question was not verified. However, having failed to raise this contention before Special Term, defendant has waived the argument.

Order reversed, on the facts, with costs to defendant Bertram Z. Kadan, motion denied and cross motion to excuse plaintiffs’ default granted upon condition that plaintiffs’ attorney pay $500 costs to defendant Bertram Z. Kadan’s attorneys within 20 days after service of a copy of the order to be entered upon this decision with notice of entry. Mahoney, P. J., Kane, Weiss and Levine, JJ., concur.  