Helfant v. Rappoport

14 A.D.2d 764, 220 N.Y.S.2d 285, 1961 N.Y. App. Div. LEXIS 8262

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 26, 1961
• Status: Published

Opinions

Per Curiam.

Defendant moved at Special Term to preclude plaintiffs for their failure to serve a bill of particulars. Plaintiffs cross-moved for summary judgment and the cross motion was granted.

The action is for the balance of payments to be made on a contract wherein the plaintiffs sold and defendant bought all of the stock of Samsing Creations, Inc., a New Jersey corporation. It was provided in the agreement that the sellers should turn over to an escrow agent certain corporate books, and also indorse and deliver their stock certificates and resignations as officers and directors to the escrow agent. The agreement further provides that after $20,000 had been paid by the buyer to the sellers, the escrow agreement should terminate and the escrow agent turn over all items held by it to the buyer. Concededly, more than $20,000 has been paid on the agreement, but the plaintiffs have refused to allow the escrow agent to turn over the documents held by it to the defendant. Furthermore, an issue has been raised as to whether all of the documents provided in the contract to be delivered to the escrow agent were in fact delivered to him.

These contentions raise issues which should havé defeated the motion for summary judgment. Other contentions - were made by the defendant, but whether or not these constitute issues is not passed upon at this time.

The defeat of plaintiffs’ cross motion necessitates a decision on defendant’s application to preclude. Plaintiffs did not comply with defendant’s demand for a bill of particulars. No motion was made to vacate or modify the demand, and the failure to so move establishes the validity of the items. Preclusion can no longer be resisted by raising questions as to the validity or propriety of any item (Tomasino v. Prudential Westchester Corp., 1 A D 2d 781; Rules Civ. Prac., rule 115). An exception does exist where the item demanded is palpably improper (Coin v. Lebenkoff, 10 A D 2d 916). By what is palpably improper is meant items not only not strictly allowable but also so burdensome to supply that compliance will involve a task that is unreasonable to exact. Furthermore, a party who takes it upon himself to refuse to comply without a prior application to modify or vacate, takes the risk of an adverse decision; and if his contention does not find favor with the court, he must be precluded (see Coin v. Lebenkoff, 14 A D 2d 679).

In this instance, we grant the motion to preclude unless a bill is served in accordance with the demand within 10 days of service of a copy of this order with notice of entry thereon. We do find, however, that items 3, 17 and 18 do come within the excepted classification and, as to these, plaintiff need not respond. A failure to serve a proper bill in regard to the remaining items will result in preclusion.

Order granting summary judgment reversed and judgment thereon vacated.