Opinion
2012-04-24
FREMONT INVESTMENT & LOAN, respondent, v. Mary GENTILE, appellant, et al., defendants.
Joseph J. Gentile, Long Island City, N.Y., for appellant. Houser & Allison, APC, New York, N.Y. (James R. Finn of counsel), for respondent.
Joseph J. Gentile, Long Island City, N.Y., for appellant. Houser & Allison, APC, New York, N.Y. (James R. Finn of counsel), for respondent.
RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, SHERI S. ROMAN, and SANDRA L. SGROI, JJ.
In an action to foreclose a mortgage, the defendant Mary Gentile appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (James J. Golia, J.), entered January 20, 2011, as denied that branch of her motion pursuant to CPLR 3126 which was to preclude the plaintiff from giving evidence at trial with respect to the denials of and defenses to her counterclaim, as set forth in the plaintiff's bill of particulars.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The purpose of a bill of particulars is to amplify the pleadings, limit the proof, and prevent surprise at trial ( see Jones v. LeFrance Leasing L.P., 81 A.D.3d 900, 902, 917 N.Y.S.2d 261; Mendelson v. Szczupak, 199 A.D.2d 479, 608 N.Y.S.2d 111; Nuss v. Pettibone Mercury Corp., 112 A.D.2d 744, 744, 492 N.Y.S.2d 240). “A bill of particulars may not be used to obtain evidentiary material” ( Nuss v. Pettibone Mercury Corp., 112 A.D.2d at 744, 492 N.Y.S.2d 240; see Tully v. Town of N. Hempstead, 133 A.D.2d 657, 519 N.Y.S.2d 764; Ginsberg v. Ginsberg, 104 A.D.2d 482, 484, 479 N.Y.S.2d 233).
Here, the appellant's demand for a bill of particulars improperly included requests for detailed information of an evidentiary nature ( see Posh Pillows v. Hawes, 138 A.D.2d 472, 474, 525 N.Y.S.2d 877). Thus, the responses in the plaintiff's bill of particulars objecting to those demands constituted an adequate response. Accordingly, the Supreme Court properly denied that branch of the appellant's motion which was to preclude the plaintiff from giving evidence at trial with respect to the denials of and defenses to the appellant's counterclaim, as set forth in the plaintiff's bill of particulars.
The appellant's remaining contentions are not properly before this Court.