Miceli v. Riley

51 A.D.2d 972, 380 N.Y.S.2d 706, 1976 N.Y. App. Div. LEXIS 11703

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 1, 1976
• Status: Published

Opinion

In an action inter alia to recover possession of real property, plaintiff appeals from an order of the Supreme Court, Suffolk County, dated November 7, 1975, which (1) granted respondents’ motion to vacate a subpoena duces tecum served on their counsel, (2) denied her motion inter alia to direct said counsel to appear for examination before trial as a witness and (3) granted respondents’ further motion for a protective order as to plaintiff’s demands for bills of particulars addressed to respondents’ affirmative defenses. Order modified by adding to the third decretal paragraph thereof, after the word "granted”, the following: "to the extent that respondents will be required to serve only one bill of particulars.” As so modified, order affirmed, without costs or disbursements. Respondents’ time to serve the bill of particulars is extended until 20 days after entry of the order to be made hereon. Plaintiffs contention that an attorney’s verification may subject such attorney to an examination before trial as a witness is singularly without merit. Since there is only one answer on behalf of respondents, only one demand for a bill of particulars addressed to the affirmative defenses and, accordingly, one bill of particulars, is proper (CPLR 3042). Respondents’ other objections to the demand do not overcome the over-all propriety of the 21 items requested to be particularized. Hopkins, Acting P. J., Hargett, Damiani, Christ and Hawkins, JJ., concur.