Pongini v. City of New York

44 A.D.2d 519, 353 N.Y.S.2d 192, 1974 N.Y. App. Div. LEXIS 5512

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 12, 1974
• Status: Published

Opinion

Order, Supreme Court, Bronx County, entered September 12, 1973, denying defendant’s motion for an order of preclusion or in the alternative, to require plaintiff to serve a further bill of particulars, unanimously modified, on the law, the facts and in the exercise of discretion, and the motion granted to the extent of directing plaintiff to serve a further bill of particulars as to items numbered 3 and 6 of the demand within 10 days after completion of the defendant-appellant’s examination before trial and, as so modified, the order is affirmed,' without costs and without disbursements. The responses to items numbered 3 and 6 of the demand are little more than a series of conclusory statements serving merely to repeat, the general allegations of the complaint and as such, are insufficient (see Barger v. Kaye, 16 A D 2d 751; Miller v. Rabinowitz, 5 A D 2d 822). However, since much of the information sought is not within the possession of the plaintiff and can be obtained through an examination before trial of the defendant-appellant, a final order of preclusion should not be granted until the examination is completed. Concur—Markewich, J. P., Kupferman, Tilzer and Moore, JJ.