Opinion
July 6, 1967
Order, entered February 16, 1967, unanimously modified, on the law and the facts and in the exercise of discretion, with $30 costs and disbursements to defendant-appellant, to the extent of granting motion to preclude unless plaintiff, within 10 days following entry of order hereon, shall serve a bill of particulars in response to defendant's demand dated May 17, 1966, and to extent of granting defendant's motion pursuant to CPLR 3122 to vacate plaintiff's notice for discovery and inspection. The plaintiff, following service of the demand for a bill of particulars, failed to move to vacate or modify the demand (see CPLR 3042, subd. [a]) and was in default thereon for approximately six months. None of the items of the demand appear to be palpably improper and, under the circumstances, the plaintiff should comply therewith. If he is unable to presently furnish certain of the information demanded, he may state such lack of knowledge under oath, and in such event he shall serve a supplemental bill of particulars within 20 days after completion of an examination before trial of the defendant and in any event at least 20 days before the trial; such supplemental bill of particulars to give the information as to which the plaintiff presently lacks knowledge. (See Matter of May, 17 A.D.2d 729; Coleman v. Ted's Auto Sales, 34 Misc.2d 100, affd. 17 A.D.2d 827. ) The notice of discovery and inspection served by plaintiff is general without sufficient and proper specification of the items to be produced. Furthermore, the memoranda, records, books and other papers may be produced for use on examination before trial of the defendant; and this determination is without prejudice to such examination. (See Rios v. Donovan, 21 A.D.2d 409; Coffey v. Orbachs, Inc., 22 A.D.2d 317.)
Concur — Stevens, J.P., Eager, Steuer, Capozzoli and McGivern, JJ.