Holmes v. Liquori , 208 N.Y.S.2d 413 ( 1960 )

Order unanimously reversed, with $25 costs and disbursements to appellant and motion granted to the extent set forth in the memorandum. Memorandum: Plaintiff complied with the demand by service of a bill of particulars. We find no authority for the return of the bill of particulars as was done by defendants’ attorneys. If the defendants took the position that the bill of particulars was defective or insufficient, they were required to resort to the procedure provided for in rule 115 of the Rules of Civil Practice. In our view, at this stage of the action, there has been compliance with defendants’, demand by service of the bill of particulars. Because of the unauthorized and unrecognized procedure resorted to by defendants, we treat the return of the bill of particulars as a nullity. Defendants are given 10 days after service of the order to be entered herein in which to make a motion against the bill of particulars, if they are so advised. If defendants shall fail to do so within such period, the plaintiff is entitled forthwith to refile his note of issue which was vacated without prejudice upon motion of the defendants, if plaintiff can comply with the certificate of readiness in all respects other than the bill of particulars requirement. (Appeal from order of Onondaga Supreme Court denying plaintiff’s motion to compel defendants to accept a bill of particulars.) Present —Williams, P. J., Bastow, Goldman, McClusky and Henry, JJ.