Frequency Electronics, Inc. v. We're Associates Co.

Appellate Division of the Supreme Court of New York

Frequency Electronics, Inc. v. We're Associates Co.

90 A.D.2d 822, 456 N.Y.S.2d 20, 1982 N.Y. App. Div. LEXIS 19063

Appellate Division of the Supreme Court of the State of New York·Decided November 22, 1982·Published·Cited by 3 cases

Opinion

In an action, inter alia, to permanently enjoin defendants from terminating plaintiff’s leasehold interest in property owned by defendant We’re Associates Company, defendants appeal from an order of the Supreme Court, Nassau County (Lockman, J.), dated April 22,1982, which denied their motion for an order pursuant to CPLR 3042 vacating plaintiff’s demand for a bill of particulars. Order reversed, with' $50 costs and disbursements, and the motion to vacate the demand is granted, with leave to plaintiff, if it be so advised, to serve a proper amended demand. With respect to information within defendants’ personal knowledge, service of a demand for a bill of particulars need not be deferred until after the completion of depositions (cf. Singer Warehouse & Trucking Corp. v Duskin, 87 AD2d 770; 3 Weinstein-Korn-Miller, NY Civ Prac, par 3041.07). However, much of the information demanded by plaintiff is evidentiary in nature, and includes, inter alia, the names of potential witnesses. It is not the function of a bill of particulars to provide evidentiary material (see Philipp Bros. Export Corp. v Acero Peruano S.A., 88 AD2d 529). Therefore, the demand must be vacated, with leave to plaintiff, if it be so advised, to serve a proper amended demand. Damiani, J. P., Mangano, Gibbons and Gulotta, JJ., concur.

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In an action, inter alia, to permanently enjoin defendants from terminating plaintiff’s leasehold interest in property owned by defendant We’re Associates Company, defendants appeal from an order of the Supreme Court, Nassau County (Lockman, J.), dated April 22,1982, which denied their motion for an order pursuant to CPLR 3042 vacating plaintiff’s demand for a bill of particulars. Order reversed, with' $50 costs and disbursements, and the motion to vacate the demand is granted, with leave to plaintiff, if it be so advised, to serve a proper amended demand. With respect to information within defendants’ personal knowledge, service of a demand for a bill of particulars need not be deferred until after the completion of depositions (cf. Singer Warehouse & Trucking Corp. v Duskin, 87 AD2d 770; 3 Weinstein-Korn-Miller, NY Civ Prac, par 3041.07). However, much of the information demanded by plaintiff is evidentiary in nature, and includes, inter alia, the names of potential witnesses. It is not the function of a bill of particulars to provide evidentiary material (see Philipp Bros. Export Corp. v Acero Peruano S.A., 88 AD2d 529). Therefore, the demand must be vacated, with leave to plaintiff, if it be so advised, to serve a proper amended demand. Damiani, J. P., Mangano, Gibbons and Gulotta, JJ., concur.

Frequency Electronics, Inc. v. We're Associates Co., 90 A.D.2d 822, 456 N.Y.S.2d 20, 1982 N.Y. App. Div. LEXIS 19063 (N.Y. Ct. App. 1982).

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Opinion

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