Montauk Improvement, Inc. v. Town of East Hampton

43 A.D.2d 973, 352 N.Y.S.2d 227, 1974 N.Y. App. Div. LEXIS 5709

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 19, 1974
• Status: Published

Opinion

In an action for a declaratory judgment, plaintiffs appeal, as limited by their brief, from all parts of an order of the Supreme Court, Suffolk County, entered August 24, 1973 and made upon their motion to vacate defendant’s demand for a bill of particulars, except the decretal provision which struck items 8 and 28 from the demand. Order reversed insofar as appealed from, with $20 costs and disbursements, and motion granted in its entirety, without prejudice to defendant’s making a proper application for a bill of particulars. The demand for a bill of particulars in this case was unnecessarily prolix and repetitious. Under the circumstances, successive siftings of the demand by Special Term and by this court are not-in order and the proper procedure is a vacatur of the entire demand. It is the duty of defendant’s attorney to assume the burden of serving a proper demand and it is not for the courts to attempt correction of a "palpably bad one’’ (Carread v. Regensburg, 17 'A D 2d 734; American Mint Corp. v. Ex-Lax, Inc., 260 App. Div. 576). Martuscello, Acting P. J., Shapiro, Christ, Benjamin and Munder, JJ., concur.