Albany Housing Authority v. M. Scher & Son, Inc. , 73 A.D.2d 995 ( 1980 )

Appeal from an order of the Supreme Court at Special Term, entered January 31, 1979 in Albany County, which granted plaintiff’s cross motion to modify the bill of particulars demanded by defendant M. Scher & Son, Inc., and denied the motion of said defendant to preclude on condition that plaintiff serve the amended bill within 30 days. Having received no answer to its demand for certain particulars in this negligence and breach of warranty action, defendant M. Scher & Son, Inc., moved for an order of preclusion. Since plaintiff had not previously applied in a timely fashion to vacate or modify the notice requesting such particulars (CPLR 3042, subd [a]), Special Term should not have entertained its belated cross motion for that type of relief unless the items demanded by defendant were palpably improper (Pratt & Sons v Kingsley Drilling & Blasting, 52 AD2d 997). In our opinion they were not, for they merely sought to narrow the theories and issues raised by the complaint in a manner that was not shown by plaintiff to constitute any particular burden (cf. Peri v State of New York, 54 AD2d 997, with Goldstein v Brogan Cadillac Oldsmobile Corp., 46 AD2d 799). Accordingly, the order appealed from should be modified by reversing so much thereof as granted plaintiffs cross motion and by granting defendant’s motion for an order of preclusion unless plaintiff serves a bill of particulars in compliance with defendant’s original demand therefor within 30 days after service of the order to be entered on this decision. Order modified, on the law and the facts, by reversing so much thereof as granted plaintiff’s cross motion to modify defendant’s demand for a bill of particulars and by granting defendant’s motion for an order of preclusion unless plaintiff serves a bill of particulars in compliance with defendant’s original demand therefor within 30 days after service of the order herein, and, as so modified, affirmed, without costs. Mahoney, P. J., Greenblott, Sweeney, Kane and Main, JJ., concur.