Opinion
June 16, 1986
Appeal from the Supreme Court, Orange County (Colabella, J.).
Order reversed, on the law, with costs, and motion denied.
CPLR 3042 (d) provides that where a bill of particulars is regarded as defective, in the absence of special circumstances, a motion for preclusion or for service of a further bill must be made within 10 days after receipt of the defective bill (Hess v Wessendorf, 102 A.D.2d 926). At bar, the plaintiffs waited over two months from the time they were served with the original bill before bringing their motion for service of a further bill, and failed to assert the existence of any special circumstances in their supporting papers. Moreover, their argument, raised for the first time on appeal, that their attempt to secure the defendant's voluntary compliance by serving a demand for a further bill of particulars some 20 days after receiving the allegedly defective bill constitutes special circumstances, is without merit. A motion pursuant to CPLR 3042 (d) is the exclusive remedy for a defective bill. There is no authority under the statute to return a defective bill or to request a further bill (Lutza v. Bollacker, 36 A.D.2d 789; Security Natl. Bank v. Green, 31 A.D.2d 641; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, C3042:6, p 684). Lazer, J.P., Bracken, Brown, Lawrence and Kooper, JJ., concur.