Opinion
March 8, 1962
Order, entered on January 5, 1962, unanimously modified, on the law and on the facts, and in the exercise of discretion, to provide that the defendants, within 10 days after service of order hereon with notice of entry and on payment of costs of this appeal hereinafter allowed, may move at Special Term to vacate or modify the demand for bill of particulars; and to further provide that, on default in so moving and in making such payment, the defendants shall be precluded unless a bill of particulars pursuant to the demand is served within 20 days after service of order hereon with notice of entry; and as so modified the order is affirmed, with $50 costs and disbursements of this appeal awarded to plaintiff-respondent. The demand here, consisting of upwards of 170 paragraphs and subparagraphs, does seek considerable matter either purely evidentiary, irrelevant or otherwise improper. To fully comply with the demand would be so "burdensome" that "compliance will involve a task that is unreasonable to exact." (See Helfant v. Rappoport, 14 A.D.2d 764. ) The defendants were in default but a few days when the motion to preclude was made, and, in opposition to the motion, they requested to be relieved of their default. Under the special circumstances here, we conclude that the defendants should be given an opportunity to test the propriety of the demand upon terms as aforesaid. (See Ferri v. Greater New York Brewery, 266 App. Div. 1005; Universal Metal Prods. v. De-Mornay Budd, 275 App. Div. 575; Inter Co. Painting Co. v. 200 East End Ave. Corp., 286 App. Div. 482; Mensh v. 12 Beekman Place, 11 A.D.2d 642. ) Settle order on notice.
Concur — Rabin, J.P., Valente, Stevens, Eager and Bergan, JJ.