Spierer v. Bloomingdale's

Appellate Division of the Supreme Court of New York

Spierer v. Bloomingdale's

17 A.D.3d 252, 793 N.Y.S.2d 403, 2005 N.Y. App. Div. LEXIS 4208

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 21, 2005

StatusPublished

This text of 17 A.D.3d 252 (Spierer v. Bloomingdale's) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Spierer v. Bloomingdale's, 17 A.D.3d 252, 793 N.Y.S.2d 403, 2005 N.Y. App. Div. LEXIS 4208 (N.Y. Ct. App. 2005).

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Opinion

Order, Supreme Court, Bronx County (Stanley Green, J.), entered on or about October 22, 2004, which, inter alia, denied plaintiffs’ motion to strike the interrogatories of defendant Simmons USA, and denied their request for a protective order, unanimously modified, on the law and the facts, to grant plaintiffs’ motion insofar as to vacate the interrogatories, without prejudice to an application to the court for limited discovery, after the completion of physical examinations and depositions, and otherwise affirmed, without costs.

In this case, which has been extensively delayed because of stays resulting from bankruptcy filings by defendant Bloomingdale’s, defendant served interrogatories when the matter was restored to the calendar, despite having received a response to a demand for a bill of particulars in 1994. Inasmuch as CELR 3130 (1) prohibits the service of interrogatories upon a party served with a demand for a bill of particulars, the interrogatories should not have been allowed (see Sassower v New York News, Inc., 101 AD2d 1020, 1021 [1984]).

In view of the age of this case, and the entry of new counsel in the proceedings, the vacatur we direct is without prejudice to an application by defendant, upon a showing of prejudice in the absence of the sought disclosure, to seek further discovery. Concur—Tom, J.P., Mazzarelli, Friedman, Gonzalez and Catterson, JJ.

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Order, Supreme Court, Bronx County (Stanley Green, J.), entered on or about October 22, 2004, which, inter alia, denied plaintiffs’ motion to strike the interrogatories of defendant Simmons USA, and denied their request for a protective order, unanimously modified, on the law and the facts, to grant plaintiffs’ motion insofar as to vacate the interrogatories, without prejudice to an application to the court for limited discovery, after the completion of physical examinations and depositions, and otherwise affirmed, without costs.

In this case, which has been extensively delayed because of stays resulting from bankruptcy filings by defendant Bloomingdale’s, defendant served interrogatories when the matter was restored to the calendar, despite having received a response to a demand for a bill of particulars in 1994. Inasmuch as CELR 3130 (1) prohibits the service of interrogatories upon a party served with a demand for a bill of particulars, the interrogatories should not have been allowed (see Sassower v New York News, Inc., 101 AD2d 1020, 1021 [1984]).

In view of the age of this case, and the entry of new counsel in the proceedings, the vacatur we direct is without prejudice to an application by defendant, upon a showing of prejudice in the absence of the sought disclosure, to seek further discovery. Concur—Tom, J.P., Mazzarelli, Friedman, Gonzalez and Catterson, JJ.

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Bluebook (online)

17 A.D.3d 252, 793 N.Y.S.2d 403, 2005 N.Y. App. Div. LEXIS 4208, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spierer-v-bloomingdales-nyappdiv-2005.

Opinion

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