From the record it does not appear that defendant ever made such a motion. CPLR 3042 (subd ) requires a party who is "unwilling" to give particulars, in whole or in part, to move to vacate or modify the demand within 10 days after receipt thereof. 1 through 5, which are allegedly within plaintiff's records and (2) within 20 days after completion of an examination before trial of plaintiff, defendant furnishes a supplemental bill of particulars as to Item Nos. 6, 7 and 8, and states under oath his lack of knowledge of matters demanded in Item Nos. Order reversed, on the law, with $50 costs and disbursements, and motion to preclude granted, unless (1) defendant, within 20 days after service upon him of a copy of the order to be made hereon, with notice of entry, furnishes a bill of particulars as to those items which he concedes to have sufficient information, i.e., Item Nos. In an action to recover for legal services rendered by plaintiff on behalf of defendant, plaintiff appeals from an order of the Supreme Court, Nassau County (Velsor, J.), dated October 17, 1980, which (1) denied his motion to preclude defendant from offering evidence on his counterclaim because of the latter's failure to serve a verified bill of particulars pursuant to plaintiff's demand, and (2) in the alternative, directed defendant to serve such bill within 20 days after completion of an examination before trial of plaintiff. ![]() Titone, J.P., Lazer, O'Connor and Rubin, JJ., concur. The better practice, in a case such as this, would be for the defendant to comply with the demand for the bill of particulars to the best of his knowledge when he lacks sufficient information to answer all of the items in the demand, he should set forth such lack of knowledge under oath, and then, after an examination of the plaintiff, defendant should serve an amended or supplemental bill as to those items which requested information that is in plaintiff's records and of which defendant had no knowledge in the absence of such examination (see Rowe v. ![]() Brogan Cadillac Oldsmobile Corp., 46 A.D.2d 799). General Motors Corp., 74 A.D.2d 886 Tafoya v. In this instance the items set forth in plaintiff's demand do not suffer from such an infirmity (see Bergman v. Under such circumstances the items will not be scrutinized but will be allowed unless "palpably improper". This court has condemned the practice of failing to question the propriety of a demand until a motion to preclude is made. In an action to recover for legal services rendered by plaintiff on behalf of defendant, plaintiff appeals from an order of the Supreme Court, Nassau County (Velsor, J.), dated October 17, 1980, which (1) denied his motion to preclude defendant from offering evidence on his counterclaim because of the latter's failure to serve a verified bill of particulars pursuant to plaintiff's demand, and (2) in the alternative, directed defendant to serve such bill within 20 days after completion of an examination before trial of plaintiff.
0 Comments
Leave a Reply. |
Details
AuthorWrite something about yourself. No need to be fancy, just an overview. ArchivesCategories |