Stokes v. McAlevey

52 A.D.2d 875

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 10, 1976
• Status: Published

Opinion

In a defamation action, plaintiff appeals from (1) an order of the Supreme Court, Rockland County, entered January 29, 1973, which granted defendant McAlevey’s motion for an order of preclusion, unless plaintiff served a bill of particulars within a specified time, and (2) a further order of the same court, entered September 22, 1975, which granted defendant McAlevey’s motion for a protective order as to plaintiff’s notice to admit. Appeal from the order entered January 29, 1973 dismissed as academic, without costs or disbursements. It appears to be uncontroverted that the bill of particulars was served in accordance with the said order and no complaint is made as to the sufficiency of that bill. Order entered September 22, 1975 modified, by adding thereto, immediately after the word "granted”, the following: "except as to items 1 and 2 and the said items are allowed”. As so modified, order affirmed, without costs or disbursements. Defendant McAlevey’s time to comply with the notice to admit is extended until 20 days after entry of the order to be made hereon. The notice to admit was improper except as to Items Nos. 1 and 2 (see CPLR 3123; Falkowitz v Kings Highway Hosp., 43 AD2d 696). Gulotta, P. J., Hopkins, Latham, Margett and Shapiro, JJ., concur.