Gilberg v. Lennon

In an action to recover attorneys’ fees, the plaintiffs appeal, as limited by their brief, from stated portions of an order of the Supreme Court, Westchester County (Nastasi, J.), entered May 1, 1991, which, inter alia, denied their motion to strike the demand for a bill of particulars of Edward J. Lennon, Jr., and certain portions of his answer, and for a preliminary conference.

Ordered that the order is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.

We find no basis to disturb the Supreme Court’s discovery order. The court struck the inappropriate requests in the demand for a bill of particulars of the defendant Edward J. Lennon, Jr., and, contrary to the plaintiffs’ contention, did not leave them with an onerous discovery burden. That branch of the plaintiffs’ motion which was to strike certain portions of the answer of Edward J. Lennon, Jr., was also properly denied. To the extent the portions of the answer constitute improper denials, they may be deemed admissions. In any event, the CPLR does not provide for the striking of improper denials (see, CPLR 3018 [a]; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3018:3, C3018:4, at 146, 148).

Nor do we disagree with the court’s denial of the plaintiffs’ application for a preliminary conference based on the plaintiffs’ failure to comply with 22 NYCRR 202.12 (a). In light of the early stage of the litigation, the court more appropriately ordered the parties to complete discovery and directed that a *647certification conference be held in 12 months pursuant to 22 NYCRR 202.12 (c) (2).

We find no merit to the plaintiffs’ remaining contentions. Bracken, J. P., Miller, O’Brien and Pizzuto, JJ., concur.