Lesser v. Kennedy

19 Misc. 2d 812, 193 N.Y.S.2d 63, 1959 N.Y. Misc. LEXIS 2893

• Court: New York Supreme Court
• Decided: October 8, 1959
• Status: Published

Opinion

Nicholas M. Pette, J.

Motion by the defendants for an order of preclusion with regard to items “5,” “ 11 ” and “ 13 ” of their demand for a bill of particulars, dated May 21, 1959, or, in the alternative, directing plaintiffs to serve a further bill of particulars with regard to said items and striking out a reservation contained in the bill of particulars dated August 28, 1959.

The motion is granted to the extent of directing plaintiffs to serve a further bill of particulars with respect to the items involved. The plaintiffs’ time to contest the items of the demand has long expired and they may not object to such items for the first time when a motion to preclude is made. (Tomasino v. Prudential Westchester Corp., 1 A D 2d 781.) The fact that some of the information sought is not specifically enumerated in any of the subdivisions of rule 116 of the Rules of Civil Practice does not render the items for such information improper in view of the language of subdivision (j) of said rule. (Sher v. Roth-Schenker Corp., 72 N. Y. S. 2d 684.)

Insofar as it is sought to strike from the bill of particulars the reservation of the right to prove further and additional damages and all the competent sequelae as are associated with such injuries, the motion is denied except that the plaintiffs will be required to serve a supplemental bill of particulars with respect thereto at least 10 days before the trial. (Manufacturers & Dealers Motor Underwriters v. Fire Brokers’ Assn., 186 App. Div. 762, 764; Krstulja v. Krstulja, 200 Misc. 186.) The further bill will be served within 10 days of the service of a copy of the order to be entered hereon.

Settle order.