Opinion
October 26, 1981
In a wrongful death action, defendant Volkswagen of America appeals from so much of an order of the Supreme Court, Kings County (Morton, J.), dated October 2, 1980, as denied its motion, pursuant to CPLR 3126, to dismiss plaintiff's complaint, or, in the alternative, to preclude plaintiff from presenting evidence at trial as to matters contained in Items No. 12 and 13 of its demand for a bill of particulars on the ground that plaintiff failed to comply with a previous order directing full response, or, in the further alternative, for leave to renew its motion for leave to serve interrogatories on the grounds that plaintiff had served an inadequate bill of particulars, and, instead, granted said defendant's motion to the extent that plaintiff was ordered to submit a further bill in full response, or, if plaintiff could not comply, to submit a sworn statement so stating. Order modified (1) by deleting that portion of the first decretal paragraph which begins with the numeral "10" and substituting therefor the following: "30 days after completion of discovery proceedings by the plaintiff. Failure to serve such particulars within the time limited shall preclude the plaintiff from offering any proof at the trial in support of the allegations sought to be amplified by Items No. 12 and 13 of the demand of defendant Volkswagen of America," and (2) by deleting the second decretal paragraph. As so modified, order affirmed insofar as appealed from, without costs or disbursements. Since plaintiff asserts that she is not in present possession of the required information, she should be given a full opportunity to acquire it through disclosure proceedings. Once these are completed, however, appellant is entitled to the protection of a preclusion order if the information is not provided. Lazer, J.P., Gulotta, Margett and Bracken, JJ., concur.