Opinion
October 17, 1988
Appeal from the Supreme Court, Queens County (Durante, J.).
Ordered that the order is affirmed, with costs.
By order dated November 18, 1983, as modified by this court's order of July 1, 1985, the defendant's motion to preclude the plaintiff from adducing at trial evidence concerning matters set forth in its demand for a bill of particulars was granted unless the plaintiff served a bill responsive to the defendant's demand within 60 days after service upon the plaintiff of a copy of the order with notice of entry. The extension of time for serving a responsive bill was granted peremptorily against the plaintiff (see, Magnus Drugs v City of New York, 114 A.D.2d 1058). The bill of particulars timely served by the plaintiff is not responsive to the defendant's demand and the plaintiff's purported inability to furnish a more responsive bill is specious and contradictory to the allegations asserted on the prior appeal. Moreover, the plaintiff has not demonstrated the existence of a meritorious claim. While it is undisputed that the invoices listed in the appendix to the plaintiff's bill of particulars were not paid in full, this fact does not suffice to show a meritorious claim as a provider has no statutory right to be paid simply because he submitted an invoice (see, Siddiqui v New York State Dept. of Social Servs., 126 Misc.2d 132, 133). Consequently, the plaintiff is precluded from proffering evidence at trial concerning the matters set forth in the defendant's demand (see, Smith v Lefrak Org., 96 A.D.2d 859, affd 60 N.Y.2d 828). Absent such evidence, the plaintiff cannot establish a prima facie case. Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment (see, Vandoros v Kovacevic, 79 Misc.2d 238; see, e.g., Shumalski v Government Employees Ins. Co., 80 A.D.2d 975, affd 54 N.Y.2d 671; Hargett v Health Hosps. Corp., 88 A.D.2d 633). Thompson, J.P., Brown, Rubin and Eiber, JJ., concur.