Opinion
June 19, 1986
Appeal from the Supreme Court, Albany County (Bradley, J.).
Plaintiff commenced the instant action for divorce on the ground of cruel and inhuman treatment pursuant to Domestic Relations Law § 170 (1). Defendant counterclaimed for divorce on the same ground and, on February 5, 1985, plaintiff served him with a demand for a bill of particulars. Defendant neither complied with nor objected to the demand. On November 21, 1985, plaintiff moved to preclude defendant from introducing evidence at trial regarding the allegations in the counterclaim for which particulars had not been delivered. Defendant cross-moved to strike plaintiff's demand on the ground that the bill of particulars was palpably improper and sought evidentiary matters and material on which plaintiff had the burden of proof. Special Term denied defendant's cross motion and granted plaintiff a conditional order of preclusion. We now affirm.
It is undisputed that defendant did not move to strike plaintiff's demand for a bill of particulars within the 10-day time period provided for in CPLR 3042 (a). Thus, defendant may not object to the items requested unless it is shown that they are palpably improper (Ritschl v. Village of Highland Falls, 92 A.D.2d 586, 587; Hoven v. Hoven, 91 A.D.2d 805, 806; Helfant v. Rappoport, 14 A.D.2d 764, 765). A bill of particulars is palpably improper when the items demanded are "not only not strictly allowable but also so burdensome to supply that compliance will involve a task that is unreasonable to exact" (Helfant v. Rappoport, supra, p 765). Plaintiff's demand consisted generally of requests for items which are appropriate for a bill of particulars. It was not objectionable to require defendant to specify dates, times and places relative to the allegations in his counterclaim (see, CPLR 3016 [c]). Furthermore, plaintiff's request for information regarding the merits of the matrimonial action, while more appropriately the subject of the disclosure devices of CPLR article 31, was not so burdensome to comply with as to render it palpably improper. Although the rule in other Departments may be that disclosure on the merits in matrimonial actions is prohibited absent some showing of extraordinary circumstances (see, Ginsberg v Ginsberg, 104 A.D.2d 482, 483 [2d Dept]; McMahan v. McMahan, 100 A.D.2d 826-827 [1st Dept]), we are of the view that any such restrictions are better left to individual protective orders to prevent abuse, rather than embodied in a blanket prohibition (see, Maxwell v. Maxwell, 88 Misc.2d 535 [Gibson, J.]; Siegel, Supplementary Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, 1986 Pocket Part, CPLR C3101:15, pp 22, 24, 27, 31, 33; 3A Weinstein-Korn-Miller, N Y Civ Prac ¶ 3101:19). Thus, defendant's cross motion to strike the demand for a bill of particulars was properly denied and a conditional order of preclusion appropriately granted.
Order affirmed, with costs. Mahoney, P.J., Kane, Casey, Weiss and Levine, JJ., concur.