King v. McCormick

19 A.D.2d 874, 244 N.Y.S.2d 158, 1963 N.Y. App. Div. LEXIS 2909

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 19, 1963
• Status: Published

Opinion

Order [No. 6561], entered on July 15, 1963, unanimously reversed, on the law and in the exercise of discretion, with $10 costs and disbursements to plaintiff-appellant, and motion of plaintiff granted to the extent of directing that, with respect to the demand of defendant Gerber, the plaintiff shall serve her .bill of particulars 30 days after completion of her examination of said defendant and of defendant Charles E. Murphy. The complaint contains allegations of breach of trust by alleged fiduciaries and of an alleged fraudulent conspiracy whereby plaintiff was divested of control of a corporation, also made defendant. Where, as here, the demand in this type of action, seeks considerable data and detail presently unknown to plaintiff and peculiarly within the knowledge of the defendants, then, in the interest of orderly procedure, the plaintiff should not be required to serve her bill of particulars until after the completion of the examination of the defendants. (See Lustig v. Longehamps, Ine., 279 App. Div. 928; Carney v. Liebmann Breweries, 8 Mise 2d 1064; cf. Penn-Texas Corp. v. Gliekman, 9 A D 2d 749.) Order [No. 6562], entered' on July 15, 1963; unanimously reversed, on the law and in the exercise of discretion, with $10 costs •and disbursements to plaintiff-appellant, and motion of plaintiff granted to the "extent of directing that, with respect to the demand of defendant Charles E. Murphy, the plaintiff shall serve her bill of particulars 30 days after completion of her examination of said defendant and of defendant Gerber. The complaint contains allegations of breach of trust by alleged fiduciaries and of an alleged fraudulent conspiracy whereby plaintiff was divested of control of a corporation, also made defendant. Where, as here, the demand in this type of action, seeks considerable data and detail .presently unknown to plaintiff and peculiarly within the knowledge of the defendants, then, in the interest of orderly procedure, the plaintiff should not be required to serve her bill of particulars until after the completion of the examination of the defendants. (See Lustig v. Longehamps, Inc., 279 App. Div. 928; Garney v. Liebmann Breweries, 8 Mise 2d 1064; cf., Penn-Texas Corp. v. Gliekman, 9 A D 2d 749.) Concur — Rabin, J. P., Valente, McNally, iStevens and Eager, JJ.