Decker v. Norton, Lilly & Co. , 20 Misc. 2d 948 ( 1960 )

Walter R. Hart, J.

Plaintiff moves for an order vacating the order of preclusion heretofore entered on default and for a disposition on the merits of defendant’s motion to preclude. The court is satisfied from the moving affidavit that plaintiff’s default was inadvertent and caused solely by a misunderstanding on the original return date with respect to the adjournment. Accordingly the motion to vacate the denial is granted and the court will concern itself with the merits of the motion.

Before the services of the notice of motion plaintiff served a bill of particulars which defendant failed to return, nor was a motion made for a further bill. Defendant urges that since plaintiff failed to move to modify the demand, the propriety of the items demanded may not be questioned at this time. Authorities indicate the contrary. The matter is solely for the discretion of the court. (Curran v. Porkar, 283 App. Div. 849; Universal Metal Prods. Co. v. De-Mornay Budd Inc., 275 App. Div. 575; Peck v. Bandell, 164 Misc. 352; Force v. Tracy Towing Lines, 190 Misc. 446; Esteve v. Abad, 50 N. Y. S. 2d 317, affd. 268 App. Div. 846; Ferri v. Greater New York Brewery, 266 App. Div. 1005.) The court in the exercise of its discretion will direct a further bill only insofar as same is warranted. The items in dispute are disposed of as follows:

Plaintiff will be directed to serve a further bill as to items 3 and 5 of the demand by giving a general statement of the acts or omissions constituting the negligence claimed. Incorporating portions of the examination before trial by reference is insufficient.

As to items 4 and 9 it appears that they have been complied with by plaintiff’s statement under oath that he lacks knowledge of the facts. Plaintiff further in response to item 4 will be required in some manner to describe or otherwise identify the person or persons claimed to have been the defendant’s employees in the loading of the truck or state specifically under oath that he lacks knowledge of the facts.

Items 10,11 and 12 seek evidentiary matter and are therefore disallowed.

A further bill is to be served within 20 days after service of a copy of an order with notice of entry.

Settle order on notice.