BURGIO, ROBERT M. v. CITY OF LOCKPORT ( 2011 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
564
CA 10-02404
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND GREEN, JJ.
ROBERT M. BURGIO, AS ADMINISTRATOR OF THE
ESTATE OF RANDALL P. BURGIO, DECEASED, AND
ASHLEY C. BURGIO AND JILLIAN M. BURGIO, AS
DISTRIBUTEES OF THE ESTATE OF RANDALL P.
BURGIO, DECEASED, PLAINTIFFS-RESPONDENTS,
V MEMORANDUM AND ORDER
CITY OF LOCKPORT, ROGER F. LAROACH,
DEFENDANTS-APPELLANTS,
ET AL., DEFENDANTS.
WEBSTER SZANYI LLP, BUFFALO (RYAN G. SMITH OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.
GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (CHARLES S. DESMOND, II, OF
COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
Appeal from an amended order of the Supreme Court, Niagara County
(Ralph A. Boniello, III, J.), entered February 5, 2010 in a personal
injury and wrongful death action. The amended order directed
plaintiffs to provide disclosure responses.
It is hereby ORDERED that said appeal insofar as it concerns
various financial documents pertaining to decedent’s estate is
unanimously dismissed and the amended order is modified on the law by
directing plaintiffs either to provide defendants with further
particulars concerning defendants’ failure to maintain the vehicle in
question and the nature of any defect, unsafe condition, or lack of
necessary safety equipment, or to provide a sworn statement that they
do not now possess the information required for the further
particulars, in which event they shall serve a supplemental bill of
particulars to defendants within 90 days of service of the order of
this Court with notice of entry if they obtain such information during
the course of disclosure, and as modified the amended order is
affirmed without costs.
Memorandum: On appeal from an amended order directing plaintiffs
to comply with certain disclosure requests, defendants contend that
Supreme Court erred in failing to provide more specific directives
with respect to the requests for various financial documents
pertaining to decedent’s estate. We conclude on the record before us
that Supreme Court provided defendants with all of the relief
requested with regard to those financial documents and defendants thus
-2- 564
CA 10-02404
are not aggrieved by that part of the amended order (see generally
CPLR 5511; Pramco III, LLC v Partners Trust Bank, 52 AD3d 1224, 1225).
We therefore dismiss the appeal from that part of the amended order.
We agree with defendants, however, that they are entitled to
further particularization concerning plaintiffs’ allegation that they
failed to maintain the motor vehicle that collided with decedent’s
motor vehicle, as well as their allegation that defendants’ vehicle
was “defective, unfit, unsafe, in a state of disrepair, and lacking
necessary safety equipment.” Although defendants are correct that
plaintiffs failed to object to the numerous demands by defendants for
such information, we nevertheless review the propriety of the demands,
and we conclude that the demands were not palpably improper (see
Community Dev. Assn. v Warren-Hoffman & Assoc., 4 AD3d 755; Kern v
City of Rochester, 261 AD2d 904, 905). To the extent that plaintiffs
contend that they presently lack sufficient knowledge to respond to
those demands, we conclude that plaintiffs must provide a sworn
statement to that effect and to furnish a supplemental bill of
particulars to defendants if and when they obtain such information
during the course of disclosure (see Laukaitis v Ski Stop, 202 AD2d
554, 555; Hughes v General Motors Corp., 106 AD2d 703, 703-704; see
generally Mahar v Fichte, 298 AD2d 948). We therefore modify the
amended order accordingly.
Entered: April 29, 2011 Patricia L. Morgan
Clerk of the Court