Tomasino v. Prudential Westchester Corp.

Appellate Division of the Supreme Court of New York

Tomasino v. Prudential Westchester Corp.

1 A.D.2d 781, 147 N.Y.S.2d 601, 1956 N.Y. App. Div. LEXIS 6692

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

DecidedJanuary 9, 1956

StatusPublished

Cited by4 cases

This text of 1 A.D.2d 781 (Tomasino v. Prudential Westchester Corp.) 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

Tomasino v. Prudential Westchester Corp., 1 A.D.2d 781, 147 N.Y.S.2d 601, 1956 N.Y. App. Div. LEXIS 6692 (N.Y. Ct. App. 1956).

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Opinion

In an action to recover damages for breach of a lease, appellant moved to preclude respondent from giving evidence on the trial because of respondent’s failure to serve a bill of particulars. The motion was granted, unless respondent served a hill of particulars within thirty days, except as to certain items which were disallowed. The appeal is from so much of the order as disallowed those items. Order modified by striking from the ordering paragraph the words and figures “ except items 4-a, 4-c, 4-e, 4-f and 6-d, which are hereby disallowed.” As so modified, order affirmed, without costs. The items which were disallowed relate to the removal of felt from the theatre and its placement on the roof. This is conduct charged by respondent to appellant. Appellant is entitled to have such particulars and to be apprised of the cost of the repairs, for which, apparently, respondent seeks recovery. In any event, respondent’s time, within which to move for modification of the demand for the bill of particulars had expired and she did not contest the items until appellant moved for a preclusion order. Under such circumstances, the items will not be scrutinized and will be allowed unless palpably improper. Nolan, P. J., Wenzel, Beldock, Murphy and Ughetta, JJ., concur.

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In an action to recover damages for breach of a lease, appellant moved to preclude respondent from giving evidence on the trial because of respondent’s failure to serve a bill of particulars. The motion was granted, unless respondent served a hill of particulars within thirty days, except as to certain items which were disallowed. The appeal is from so much of the order as disallowed those items. Order modified by striking from the ordering paragraph the words and figures “ except items 4-a, 4-c, 4-e, 4-f and 6-d, which are hereby disallowed.” As so modified, order affirmed, without costs. The items which were disallowed relate to the removal of felt from the theatre and its placement on the roof. This is conduct charged by respondent to appellant. Appellant is entitled to have such particulars and to be apprised of the cost of the repairs, for which, apparently, respondent seeks recovery. In any event, respondent’s time, within which to move for modification of the demand for the bill of particulars had expired and she did not contest the items until appellant moved for a preclusion order. Under such circumstances, the items will not be scrutinized and will be allowed unless palpably improper. Nolan, P. J., Wenzel, Beldock, Murphy and Ughetta, JJ., concur.

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Bluebook (online)

1 A.D.2d 781, 147 N.Y.S.2d 601, 1956 N.Y. App. Div. LEXIS 6692, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tomasino-v-prudential-westchester-corp-nyappdiv-1956.

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