Harry T. Mangurian, Inc. v. Lisbon Contractors, Inc.

Order unanimously reversed, with costs to defendant Lisbon, and motion to preclude granted in accordance with the following memorandum: This is an action for compensatory and punitive damages allegedly sustained as a result of defendant’s actions in constructing an underground sewer line. Defendant Lisbon denied the allegations and demanded a bill of particulars. When the bill was not forthcoming, it moved for preclusion and on November 27, 1979, over opposition, Justice Conway granted a conditional 30-day order. On December 26, 1979 plaintiff submitted a proposed bill of particulars which defendant rejected and then *956moved once again for preclusion (see CPLR 3042, subd [d]; Lutza v Bollacker, 36 AD2d 789). The motion came on before another Judge. He neither referred the matter to Justice Conway (see CPLR 2221) nor ruled on the sufficiency of the proffered bill of particulars. Instead he ordered that appellant submit its employees to an examination before trial before plaintiff was required to supply the requested particulars. In effect, he vacated and annulled the order of another Judge of co-ordinate jurisdiction, thereby abusing his discretion. On the merits, this bill as submitted was inadequate and defendant properly rejected it. Plaintiff must state its claim as best as it is able, subject to later amendment or supplement if necessary. Appellant’s motion is granted, therefore, and plaintiff is directed to submit its bill within 10 days of the order herein or be precluded from offering evidence on the particulars demanded. (Appeal from order of Supreme Court, Monroe County, Curran, J. — bill of particulars.) Present — Simons, J. P., Hancock, Jr., Callahan, Denman and Moule, JJ.