Clark v. Vicinanzo

108 A.D.2d 984, 484 N.Y.S.2d 971, 1985 N.Y. App. Div. LEXIS 43312

Opinion

Levine, J.

Appeal from an order of the Supreme Court at Special Term (Cerrito, J.), entered June 12, 1984 in Montgomery County, which granted plaintiff’s motion to vacate the demand of defendant Vincent E. Vicinanzo for a bill of particulars.

Plaintiff brought the instant action to recover a referral fee allegedly owed him by defendants. He subsequently moved for a order vacating 21 of the 29 individual demands contained in defendant Vincent E. Vicinanzo’s demand for a bill of particulars. Special Term found that most of the contested demands sought information which was evidentiary in nature and, citing Nazario v Fromchuck (90 AD2d 483), vacated the entire demand for a bill of particulars.

The demand for a bill of particulars in its original form was correctly vacated on the ground that the individual demands in question were designed to elicit plaintiff’s evidence in support of his claim, rather than to obtain the details of his claim (see, Siegel, NY Prac § 238, at 291-292 [1978]). Inter alia, the demand contains a request for the names of potential witnesses, as well as for the details of the work which plaintiff performed pursuant to an alleged oral contract. Both types of demands are unacceptable as they call for evidentiary information (see, Frequency Electronics v We’re Assoc. Co., 90 AD2d 822; 6 Carmody-Wait 2d, NY Prac § 36.26, at 212-213 [1966]).

Since counsel for plaintiff stipulated on oral argument that he would accept an appropriately modified demand for a bill of particulars, it is unnecessary to respond to defendant Vicinanzo’s alternative request, advanced on this appeal, for leave to serve such a modified demand.

Order affirmed, without costs. Mahoney, P. J., Kane, Casey, Weiss and Levine, JJ., concur.