Montondo v. Petty

21 A.D.2d 975, 252 N.Y.S.2d 943, 1964 N.Y. App. Div. LEXIS 3182

Opinion

Order unanimously reversed, without costs of this appeal to any party, and motion denied, without costs, without prejudice to reapply upon appropriate papers. Memorandum: The papers submitted in support of the motion to serve an amended bill of particulars were inadequate in that there was no affidavit by a person with knowledge of the facts. Even though respondent failed to file any affidavits in opposition to the motion, in view of the appearance and oral argument by her counsel in opposition on the return day, the court was required to examine plaintiff’s moving papers and, if legally insufficient, to deny the motion. (Appeal from order of Erie Special Term granting motion of plaintiff Ruth Montondo, to file an amended bill of particulars.) Present — Williams, P. J., Bastow, Goldman, Noonan and Del Veeehio, JJ.