Ragone v. Augie's Auto Spring & Wheel Alignment Co.

19 Misc. 2d 948, 190 N.Y.S.2d 51, 1959 N.Y. Misc. LEXIS 3138

• Court: New York Supreme Court
• Decided: August 20, 1959
• Status: Published

Opinion

Feed J. Mttndee, J.

This motion to preclude is denied.

Not only is the notice of motion unsupported, except by an unsigned affidavit, but the procedure of serving a demand for a bill of particulars after a motion for a bill of particulars was denied without prejudice to a renewal thereof (at the time defendants were permitted to serve an amended answer) is not to be tolerated.

In view of the history of this case defendants are entitled to no remedies except such as may be granted them by the court. With the statement of readiness on file (Rules App. Div. 2d Dept., Special Rule eff. Nov. 18,1957, as amd.) and the case not struck from the calendar, two motions for that relief having been denied, the defendants may not initiate any of the preliminary proceedings authorized by the sections and rules mentioned in the Special Rule (subd. [3], par. [a]), except by motion.

In this situation the failure of plaintiff’s attorney to move to vacate the demand for the bill of particulars will be excused as less objectionable and on the court’s own motion the demand is vacated.

Apart from the statement of readiness rule, after a motion has been denied, with or without prejudice to its renewal, the relief sought should not thereafter be available on notice or demand or otherwise than by a further order of the court.