Opinion
October 13, 1970
In a negligence, medical malpractice and breach of contract action to recover damages for wrongful death and conscious pain and suffering, defendant Schwartz appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County, dated February 17, 1970, as denied his motion to preclude plaintiff from offering any evidence at the time of trial as to items 2 and 3 demanded in said defendant's demand for a bill of particulars or, in the alternative, to compel plaintiff to submit a further bill of particulars. Order modified by deleting the last paragraph thereof and by substituting therefor the following: "Within 10 days after the conclusion of the pretrial examination of the defendant Schwartz, the plaintiff shall serve a supplemental bill of particulars setting forth any specific acts of negligence revealed at the examination and intended to be relied upon at the trial." As so modified, order affirmed insofar as appealed from without costs. A plaintiff does not have to set forth in a bill of particulars the specific acts of negligence committed by the defendant where he relies on the doctrine of res ipsa loquitur. If specific acts of negligence are brought out upon the plaintiff's pretrial examination of the defendant, the plaintiff then has the burden of supplying a supplemental bill setting forth the specific acts of negligence on which he intends to rely at the trial. Martuscello, Acting P.J., Latham, Kleinfeld, Brennan and Benjamin, JJ., concur.