Opinion
March 5, 1984
In an action to recover damages, inter alia, for breach of contract, defendant appeals from an order of the Supreme Court, Suffolk County (Copertino, J.), dated December 28, 1982, which granted plaintiff's motion to preclude defendant from giving any evidence at trial as to his affirmative defenses and counterclaims. ¶ Order affirmed, with costs. ¶ The bill of particulars submitted by defendant's counsel was clearly inadequate in many instances and did not comply with a conditional order of preclusion dated June 9, 1982 and extended by order dated August 11, 1982. It was not the duty of Special Term to construct a proper bill ( Public Serv. Mut. Ins. Co. v Flatow, 64 A.D.2d 514). The use of the word "opposed" in several instances in the bill of particulars is particularly unacceptable in view of defendant's utter failure to move to vacate or modify the plaintiff's demand (CPLR 3042, subd [a]; Helfant v Rappoport, 14 A.D.2d 764; Morell v Saratoga Harness Racing, 44 A.D.2d 884; Pratt Sons v Kingsley Drilling Blasting, 52 A.D.2d 997; Bergman v General Motors Corp., 74 A.D.2d 886). Accordingly, Special Term was correct in granting plaintiff's motion for a final order of preclusion. Mangano, J.P., O'Connor, Weinstein and Lawrence, JJ., concur.