Innella v. Salvation Army

25 Misc. 2d 1003, 209 N.Y.S.2d 880, 1961 N.Y. Misc. LEXIS 3587

Opinion

James D. Hopkins, J.

The defendant’s motion for an order of preclusion is denied, on condition that the plaintiff serve within 10 days of the service of the order, with notice of entry, a verified bill of particulars in accordance with the demand. Although, under certain circumstances, a plaintiff may for the first time on a motion to preclude, question the propriety of the items demanded by a defendant of the particulars of a complaint (Esteve v. Abad, 50 N. Y. S. 2d 317, affd. 268 App. Div. ), the appropriate procedure is for the plaintiff to cross-move for the relief sought, if it claimed that the items range beyond the particulars approved by practice, or to cross-move to be relieved from his default (Ferri v. Greater New York Brewery, 266 App. Div. 1005; Tomasino v. Prudential Westchester Corp., 1 A D 2d 781). Submit order on notice.