Opinion
March 24, 1947.
Nathan Canter for plaintiff.
Louis J. Carruthers for defendant.
Plaintiff, in an action to recover damages for personal injuries, moves to vacate items 4 and 5 of defendant's demand for a bill of particulars upon the ground that the accident in question occurred under circumstances that render the doctrine of res ipsa loquitur applicable.
It is, of course, true that where a plaintiff relies on the foregoing doctrine, a defendant is not entitled to particulars as to the specific acts of negligence which are claimed to have caused the accident ( Haines v. City of Newburgh, 234 A.D. 389; Hamilton v. New York State Realty Terminal Co., 66 N.Y.S.2d 177). However, in the court's discretion, the plaintiff will be required to state, in her bill of particulars to be served herein, that she intends to rely upon the doctrine of res ipsa loquitur, and if such statement be made, then items 4 and 5, which require particulars as to the acts of negligence, will be eliminated. (Cf. Smith v. Bower, 270 A.D. 977.) The bill of particulars will be served within fifteen days after the service of a copy of the order hereon.