Opinion
October 31, 1960
Hubert J. Holler for plaintiffs.
Gleason, Fitzpatrick, O'Connor O'Brien for defendants.
Motion for a further bill of particulars is granted as to the information demanded under items numbered 1 and 2, on consent of the attorney for the plaintiff.
In reference to the demand numbered 3, the motion is also granted.
The information demanded in item 4 referred to the number of visits his physicians made on plaintiff at his residence, and at his office respectively.
In the Fourth Department, the Appellate Division has ruled the defendant is entitled to that specific information.
In the case of Mioducki v. Becht which arose in Erie County in 1951, the Justice presiding at Special Term, May 12, 1954, granted an order requiring the plaintiff to serve a further bill of particulars, stating: "The number of house calls made on plaintiff by his physicians and the number of visits made by plaintiff at the offices of his physician." An appeal, limited to the propriety of the granting of the order, was taken to the Appellate Division, May 25, 1964. The granting of the order was affirmed January 14, 1955 ( Mioducki v. Becht, 285 App. Div. 863. See, also, Vol. 3064, Cases and Points, 5th case, Buffalo Law Library).
The court states in its decision affirming the granting of the order ( supra): "We regard the order appealed from as a discretionary order and we see no reason to disturb the discretion of the Special Term."
In view of the above decision and this court's opinion that the granting of the order is discretionary, the cases cited by the plaintiffs ( Steinau v. Metropolitan St. Ry., 63 App. Div. 126 and Desimone v. Robertson, 19 Misc.2d 80) are not regarded as mandating the denial of the motion in the Fourth Department.
Therefore, in my discretion, said motion is granted. Submit order.