Giovannettone v. Neier

67 A.D.2d 962, 413 N.Y.S.2d 468, 1979 N.Y. App. Div. LEXIS 10746

Opinion

— In a medical malpractice and products liability action, defendant American Cystoscope Makers, Inc., appeals from an order of the Supreme Court, Queens County, dated April 28,1978, which denied its motion to (1) preclude admission of proof on certain items contained in its demand for a bill of particulars or, in the alternative, to direct a further bill of particulars as to said items and (2) vacate certain items in the plaintiffs’ demand for a bill of particulars. Order modified by deleting therefrom the provision denying the branch of the appellant’s motion to vacate and substituting therefor a provision granting said branch of the motion only to the extent of striking Items Nos. 2, 3, 4, 6, 7, 9, 10, 13, 14, 15, 16 and 17 from plaintiffs’ demand for a bill of particulars. As so modified, order affirmed, without costs or disbursements. The items stricken call primarily for evidentiary details in areas in which the plaintiffs bear the primary burden of proof (Matter of Reynolds, 38 AD2d 788). While many of the items are properly subject to pretrial disclosure they may not be obtained by means of a bill of particulars. Rabin, J. P., Shapiro, Cohalan and Martuscello, JJ., concur.