Opinion
March 16, 1971
Appeal from an order of the Supreme Court at Special Term, entered November 4, 1968 in Schenectady County, which denied a motion for summary judgment dismissing the complaint. In this negligence action to recover for personal injuries and property damage and upon plaintiffs' failure to serve any bill of particulars responding to the demand, defendants obtained an order of preclusion which provided that it would be effective unless plaintiffs served, within 30 days after service of the order, a bill as required by the demand. A bill was served within said period but it was returned by defendants because it failed to describe the injuries claimed to be permanent. Contending that thereby plaintiffs were precluded from presenting proof as to negligence and damages and that therefore no triable issue remained, defendants moved for summary judgment. Said motion was properly denied since defendants failed to follow the procedure prescribed in subdivision (d) of CPLR 3042 in respect to a bill of particulars regarded as defective ( Golowaty v. Machnick Constr. Co., 26 A.D.2d 718). There was no authority for the return of the bill since the rule has provided a specific remedy where a bill of particulars is deemed inadequate ( Le Page v. Continental Cas. Co., 16 A.D.2d 1012), its sufficiency being a question for the court, and not for counsel, to decide ( Block v. Bronstein, 16 A.D.2d 926). Order affirmed, with costs. Herlihy, P.J., Staley, Jr., Cooke, Sweeney and Simons, JJ., concur.