Opinion
October 4, 1982
In a personal injury action stemming from plaintiff allegedly being attacked and bitten by a dog owned by defendant, plaintiff appeals from an order of the Supreme Court, Kings County (Bellard, J.), entered April 6, 1982, which denied her motion for a protective order vacating defendant's entire demand for a bill of particulars. Order reversed, with $50 costs and disbursements, and motion granted, without prejudice to defendant's service of a proper demand for a bill of particulars. Defendant served a demand for a bill of particulars consisting of 18 paragraphs, and more than 60 separate requests. While some of the particulars demanded are proper, many of the others call for evidentiary material (see Berkey Photo v. Movielab, Inc., 37 A.D.2d 549), and material upon which the defendant has the burden of proof (see Somma v. Sears, Roebuck Co., 52 A.D.2d 784). Defendant's demand for the names and addresses of witnesses to the incident is also improper since there has been no showing of special and unusual circumstances to warrant such disclosure at this time (see State of New York v Bridgehampton Road Races Corp., 44 A.D.2d 725; Brill v. Chien Yuan Kao, 61 A.D.2d 1000). In addition defendant's demand for a breakdown of the general damages claimed by plaintiff is also improper (see Leeponis v. Garcy Corp., 61 A.D.2d 1040, 1041; Brugman v. County of Nassau, 41 A.D.2d 653). In view of the foregoing, we believe the demand is unduly burdensome and oppressive. Under these circumstances the remedy is not a pruning of the demand either by Special Term or this court, but rather vacatur of the entire demand (see Berkey Photo v. Movielab, Inc., supra; Somma v. Sears, Roebuck Co., supra; Montauk Improvement v Town of East Hampton, 43 A.D.2d 973). It is the duty of defendant's attorney to assume the burden of serving a proper demand and it is not for the courts to attempt correction of a "`palpably bad one'" (see Montauk Improvement v. Town of East Hampton, supra). Mollen, P.J., Damiani, Titone and Weinstein, JJ., concur.