Harding v. Spofford Laundry Corp.

Appellate Division of the Supreme Court of New York

Harding v. Spofford Laundry Corp.

44 A.D.2d 804, 355 N.Y.S.2d 590, 1974 N.Y. App. Div. LEXIS 5024

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 14, 1974

StatusPublished

Cited by1 cases

This text of 44 A.D.2d 804 (Harding v. Spofford Laundry Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Harding v. Spofford Laundry Corp., 44 A.D.2d 804, 355 N.Y.S.2d 590, 1974 N.Y. App. Div. LEXIS 5024 (N.Y. Ct. App. 1974).

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Opinion

Order, Supreme Court, Bronx County, entered November 2, 1973, denying a motion to vacate a demand for particulars and documents served on the defendant Spofford Laundry Corp. (Spofford), unanimously reversed, on the law and the facts' and in the exercise of discretion, the motion granted, without prejudice to allowing service of renewed demands in accordance with this memorandum, and appellant shall recover of defendant-respondent $40 costs and disbursements of this appeal. Plaintiff, in this tort action, is suing for damages incurred on premises owned by the defendant Melsey Realty Corp. (Melsey). The defendant Spofford served a cross complaint upon Melsey and Melsey thereupon served an answer and demand on Spofford “pursuant to CPLR 3120 and CPLR 3041-3044 ”. Spofford moved to vacate the demand which motion was denied by Special Term. We disagree. The demand should have been vacated. A demand for discovery pursuant to CPLR 3120 must identify the items sought with specificity, and if they cannot be so identified, then the demand should await an examination before trial during which the specific materials sought can be accurately pinpointed (see, e.g., Rios v. Donovan, 21 A D 2d 409; Ramo v. General Motors Corp., 36 A D 2d 693, 694). Furthermore, the function of a demand for a bill of particulars is to amplify the pleadings and not to supply evidentiary material. A demand seeking such material should be stricken (see, e.g., Berkey Photo v. Movielab, 37 A D 2d 549; L. F. Dommerich & Co. v. Diener & Dorskind, Inc., 31 A D 2d 516). In this action, Melsey served a combined demand suffering from infirmities in both areas, viz., lack of specificity and an improper request for evidentiary material. Finally, we must note that the better practice would be to serve these two types of demands separately. Concur — Markewich, J. P., Murphy, Lupiano, Tilzer and Lane, JJ.

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Order, Supreme Court, Bronx County, entered November 2, 1973, denying a motion to vacate a demand for particulars and documents served on the defendant Spofford Laundry Corp. (Spofford), unanimously reversed, on the law and the facts' and in the exercise of discretion, the motion granted, without prejudice to allowing service of renewed demands in accordance with this memorandum, and appellant shall recover of defendant-respondent $40 costs and disbursements of this appeal. Plaintiff, in this tort action, is suing for damages incurred on premises owned by the defendant Melsey Realty Corp. (Melsey). The defendant Spofford served a cross complaint upon Melsey and Melsey thereupon served an answer and demand on Spofford “pursuant to CPLR 3120 and CPLR 3041-3044 ”. Spofford moved to vacate the demand which motion was denied by Special Term. We disagree. The demand should have been vacated. A demand for discovery pursuant to CPLR 3120 must identify the items sought with specificity, and if they cannot be so identified, then the demand should await an examination before trial during which the specific materials sought can be accurately pinpointed (see, e.g., Rios v. Donovan, 21 A D 2d 409; Ramo v. General Motors Corp., 36 A D 2d 693, 694). Furthermore, the function of a demand for a bill of particulars is to amplify the pleadings and not to supply evidentiary material. A demand seeking such material should be stricken (see, e.g., Berkey Photo v. Movielab, 37 A D 2d 549; L. F. Dommerich & Co. v. Diener & Dorskind, Inc., 31 A D 2d 516). In this action, Melsey served a combined demand suffering from infirmities in both areas, viz., lack of specificity and an improper request for evidentiary material. Finally, we must note that the better practice would be to serve these two types of demands separately. Concur — Markewich, J. P., Murphy, Lupiano, Tilzer and Lane, JJ.

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44 A.D.2d 804, 355 N.Y.S.2d 590, 1974 N.Y. App. Div. LEXIS 5024, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harding-v-spofford-laundry-corp-nyappdiv-1974.

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