Somma v. Sears, Roebuck & Co.

52 A.D.2d 784, 383 N.Y.S.2d 22, 1976 N.Y. App. Div. LEXIS 12567

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 11, 1976
• Status: Published

Opinion

Order, Supreme Court, New York County, entered February 5, 1975, granting defendant’s motion to modify plaintiffs demand for a bill of particulars and denying plaintiffs cross motion to strike or modify defendant’s demand for a bill of particulars, unanimously modified, on the law and the facts and in the exercise of discretion, to the extent of striking plaintiffs demand in its entirety, striking items numbered 2 and 20 of defendant’s demand, and deleting the word "exact” from items numbered 1 and 3 of defendant’s demand, and otherwise affirmed, without costs or disbursements. Plaintiffs have leave, if so advised, to serve a proper, amended demand for a bill of particulars. The function of a bill of particulars is to amplify the pleadings and not to afford evidentiary material (Dommerich & Co. v Diener & Dorskind, 31 AD2d 516; Vicidomini v State of New York, 21 AD2d 837). The complaint contains 44 separate paragraphs requiring amplification and clarification. The defendants’ answer, other than the denials and admissions related to the paragraphs in the complaint, also contains a single affirmative defense three paragraphs in length. Under the circumstances, we find that plaintiffs demand for a bill of particulars containing 22 separately numbered items, ostensibly to amplify and clarify the three-paragraph affirmative defense, to be palpably improper and onerous. It should have been stricken (Berkey Photo v Movielab, Inc., 37 AD2d 549; Carroad v Regensburg, YJ AD2d 734). Defendant’s demand, on the other hand, does serve the function of amplifying the complaint served. We merely note that the term "exact” in items numbered 1 and 3 should be deleted. Furthermore, items numbered 2 and 20 requesting evidentiary material and material upon which the defendant has the burden of proof are not properly part of a bill of particulars and should be stricken. Concur —Kupferman, J. P., Birns, Capozzoli, Lane and Yesawich, JJ.