Opinion
November 10, 1986
Appeal from the Supreme Court, Seneca County, Dugan, J.
Present — Doerr, J.P., Boomer, Green, Pine and Balio, JJ.
Order unanimously modified on the law and as modified affirmed, with costs to defendant, in accordance with the following memorandum: Special Term erroneously denied defendant's motion to preclude for failure of plaintiff to respond properly to defendant's demand for a bill of particulars. Plaintiff is not excused from furnishing particulars of his claim because those particulars are within the knowledge of defendant (see, Spencer v Holt, 86 A.D.2d 981; Le Frois Foods Corp. v Policy Advancing Corp., 59 A.D.2d 1013).
The particulars requested in paragraphs 2, 3 and 4 of the demand are not relevant to plaintiff's claim in this action for moneys received by defendant as plaintiff's agent. The particulars requested in paragraphs 5, 6 and 7, however, are pertinent to the claim and should be furnished. Defendant's motion, therefore, is granted to the extent that plaintiff is precluded from offering evidence at the trial concerning the matters requested in paragraphs 5, 6 and 7 of the demand unless he complies with those requests within 30 days after the service of the order entered hereon. Should plaintiff for good cause be unable to furnish the particulars within 30 days after service of the order, he may move at Special Term for an extension of time.