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L. F. DOMMERICH & CO. v. DIENER & DORSKIND (11/07/68)

November 7, 1968

L. F. DOMMERICH & CO., INC., RESPONDENT,
v.
DIENER & DORSKIND, INC., APPELLANT



Concur -- Stevens, J. P., Eager, Capozzoli, McGivern and Rabin, JJ.

A defendant should not ordinarily be required to furnish a bill of particulars where his answer consists solely of denials and admissions. (See Silberfeld v. Swiss Bank Corp., 263 App. Div. 1017; United Cigar-Whelan Stores Corp. v. City of Syracuse, 83 N. Y. S. 2d 895, 897.) Here, the demand for a bill of particulars sought detailed evidentiary material more properly obtainable on an examination before trial. The demand was decidedly improper as it was obviously an attempt to shift the burden of proof and placed an improper burden on the defendant. We conclude that under the circumstances here, the defendant was not guilty of laches precluding its right to have the demand vacated. (See Coin v. Lebenkoff, 10 A.D.2d 916; Helfant v. Rappoport, 14 A.D.2d 764; see, also, Baumgarten v. Lear, 26 A.D.2d 932.)

Disposition

Order, entered July 1, 1968, unanimously modified, on the law, on the facts and in the exercise of discretion, to deny plaintiff's motion to preclude and to grant defendant's cross motion insofar as it sought vacatur of plaintiff's demand for bill of particulars, and said order otherwise affirmed, with $30 costs and disbursements to defendant-appellant.

19681107

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