Simpson Electric Corp. v. Leucadia, Inc.

130 A.D.2d 738, 516 N.Y.S.2d 39, 1987 N.Y. App. Div. LEXIS 46750

Opinion

In an action, inter alia, to recover damages for breach of contract, the defendant Leucadia, Inc., formerly known as James Talcott, Inc., appeals from an order of the Supreme Court, Queens County (Leviss, J.), dated June 19, 1986, which denied its motion to vacate the demand of the plaintiff for a bill of particulars.

Ordered that the order is reversed, with costs, and the motion is granted, with leave to the plaintiff, if it be so advised, to serve a proper amended demand.

The plaintiff’s demand for a bill of particulars includes improper requests for (1) evidentiary material (see, e.g., Manchester Deli v County of Dutchess, 114 AD2d 1013; Ginsberg v Ginsberg, 104 AD2d 482, 484), (2) names and addresses of prospective witnesses with no showing of special and unusual circumstances warranting such disclosure (see, Ginsberg v Ginsberg, supra; Nazario v Fromchuck, 90 AD2d 483; Brill v Chien Yuan Kao, 61 AD2d 1000), and (3) matter upon which the plaintiff has the burden of proof (see, e.g., Ginsberg v Ginsberg, supra; Nazario v Fromchuck, supra). In view of the foregoing, we view the demand as unduly burdensome and oppressive. The proper remedy under these circumstances is to vacate the demand with leave to amend rather than pruning of the demand (see, Manchester Deli v County of Dutchess, supra; Nazario v Fromchuck, supra). Accordingly, we reverse and grant the motion to vacate. Thompson, J. P., Lawrence, Rubin, Kunzeman and Sullivan, JJ., concur.