Opinion
March 16, 1971
Appeal from an order of the County Court of Broome County, entered March 9, 1970, which granted plaintiff's motion for a "protective order * * * vacating the notice of defendant for an examination before trial of the plaintiff and also vacating defendant's demand for a bill of particulars". In this action for the foreclosure of a mechanic's lien, the summons and complaint were served on April 24, 1969, the answer on May 7, 1969 and the note of issue with a statement of readiness was filed on May 20, 1969. The case was marked ready for trial on October 1, 1969, a pretrial conference was scheduled for October 29, 1969 and, upon the nonappearance of defendant's attorney, the matter was adjourned to the December 1969 Trial Term. On December 5, 1969 defendant served a demand for a bill of particulars and a notice for an examination before trial. Defendant having failed to move to strike the case from the calendar within 30 days after the note of issue and statement of readiness were filed and served (22 NYCRR 861.10 [c]) and absent a factual showing of unusual and unanticipated conditions, there was a waiver of his right to pursue proceedings for disclosure ( Liberty Dressing Co. v. Foster Sportswear Co., 14 A.D.2d 196, 197) and a bill of particulars ( Cerrone v. S'Doia, 11 A.D.2d 350, 352) and the discretion of the County Court should not be disturbed (cf. Wahrhaftig v. Space Design Group, 33 A.D.2d 953). Order affirmed, with costs. Herlihy, P.J., Reynolds, Greenblott, Cooke and Simons, JJ., concur.