Fulton County National Bank & Trust Co. v. Bollam

114 A.D.2d 655, 494 N.Y.S.2d 236, 1985 N.Y. App. Div. LEXIS 53335

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 24, 1985
• Status: Published

Opinion

Kane, J. P.

Appeal from an order of the Supreme Court at Special Term (Ford, J.), entered August 6, 1984 in Fulton County, which denied a motion by defendants Kenneth W. Keith and William Pascoe to vacate plaintiffs demand for a bill of particulars and granted plaintiffs cross motion for a conditional order of preclusion.

After completion of extensive discovery, plaintiff served a demand for a bill of particulars with respect to the affirmative defenses and counterclaims of defendants Kenneth W. Keith and William Pascoe. This demand, consisting of 41 paragraphs and well over 100 separate requests, sought a mass of detail which would not appreciably narrow the issues. Indeed, a review of the record reveals the demand to be unduly burdensome and oppressive (3 Weinstein-Korn-Miller, NY Civ Prac If If 3042.02-3042.03). Under the circumstances of this case, the appropriate remedy is vacatur of the entire demand (see, Nazario v Fromchuck, 90 AD2d 483, 484; Berkey Photo v Movielab, Inc., 37 AD2d 549; Carroad v Regensburg, 17 AD2d 734; 3 Weinstein-Korn-Miller, NY Civ Prac ff 3042.03). In a case such as this, it is the duty of plaintiff’s attorney "to assume the burden of serving a proper demand and it is not for the courts to attempt correction” (Nazario v Fromchuck, supra, p 484). The order must, therefore, be reversed.

Order reversed, on the law and the facts, without costs, motion granted and cross motion denied. Kane, J. P., Main, Yesawich, Jr., Levine and Harvey, JJ., concur.