Opinion
July 5, 1961
In an action to recover damages for breach of contract and to recover the balance due on three promissory notes, the parties cross-appeal as follows from orders of the Supreme Court, Queens County: (1) Plaintiff appeals from so much of an order, dated December 8, 1960, as granted defendants' motion to vacate the plaintiff's demand for a bill of particulars, to the extent of striking out Item III. (2) Defendants appeal from so much of said order as denied their motion to vacate said demand. (3) Defendants also appeal from so much of an order, dated February 1, 1961, as granted plaintiff's motion to modify their notice to examine plaintiff before trial, to the extent of striking out a portion of item 1 and all of items 2, 3, 4, 5 and 6 from such notice. Order of December 8, 1960, modified by striking out the first decretal paragraph which grants defendants' motion to vacate plaintiff's demand for a bill of particulars, to the extent of eliminating Item III from such demand; and by substituting therefor a paragraph denying defendants' motion in toto. As so modified said order, insofar as appealed from, is affirmed, with $10 costs and disbursements to plaintiff. Defendants' time to serve their bill of particulars is extended until 10 days after entry of the order hereon. Order of February 1, 1961, insofar as appealed from, affirmed, with $10 costs and disbursements to plaintiff. With respect to the bill of particulars, it is our opinion that the defendants, having allowed Item II to go unchallenged in their moving papers, acquiesced in defining the counties and boroughs wherein the plaintiff's alleged monopolistic practices occurred. Hence, defendants should have been further directed to comply with Item III, which requires further particularization by naming the streets and avenues of the boundaries of the area in question, somewhat vaguely described as the "Metropolitan Area" and "area" in paragraphs 9 and 17 of the amended answer. With respect to defendants' notice to examine plaintiff before trial, we believe that the items stricken out were properly eliminated as a matter of discretion, despite their ostensible purpose to support the alleged defenses of illegality flowing out of plaintiff's alleged monopolistic practices. These defenses contain only conclusory allegations; they fail to set forth sufficient facts to substantiate the allegations or the charges made. The examination of an adversary may be properly denied in discretion where a party seeks the examination in support of his pleading which contains for the most part vague and indefinite allegations, and where his motion papers are equally vague and indefinite as to the precise facts to be established ( Rosen v. Tanowitz, 272 App. Div. 775). Beldock, Acting P.J., Kleinfeld, Christ, Pette and Brennan, JJ., concur.