Opinion
February 6, 1978
In a medical malpractice action, the defendant Becker appeals from an order of the Supreme Court, Nassau County, dated August 5, 1977, which denied his motion for an order of preclusion predicated upon plaintiff's failure to serve a bill of particulars. Order reversed, with $50 costs and disbursements, and motion to preclude granted unless plaintiff serves and files a supplemental bill of particulars with respect to items 3, 5, 6 and 8 of defendant Becker's demand within 10 days after service upon her of a copy of the order to be entered hereon, together with notice of entry thereof. If plaintiff is presently without knowledge as to any of the items allowed, she may so state under oath and she may serve a supplemental bill on such items promptly upon obtaining knowledge thereof, but in any event, not later than 30 days before the date of the trial. Although defendant-appellant Becker served a demand for a bill of particulars in September, 1976, plaintiff-respondent failed to serve a bill until June, 1977; that was after appellant had moved for an order of preclusion. This practice has been condemned by the courts (see Goldstein v Brogan Cadillac Oldsmobile Corp., 46 A.D.2d 799; Tomasino v Prudential Westchester Corp., 1 A.D.2d 781; De Castro v City of New York, 54 Misc.2d 1007). "Under such circumstances, the items [of the demand] will not be scrutinized and will be allowed unless palpably improper" (Tomasino v Prudential Westchester Corp., supra). Appellant objects only to the particulars that plaintiff has supplied with respect to items 3, 5, 6 and 8 of his demand. It is evident that the particulars supplied as to those items do not meet the demand. Since we cannot say that those items of the demand are "palpably improper", plaintiff must either properly answer them or face preclusion with respect thereto. Martuscello, J.P., Damiani, Titone and Shapiro, JJ., concur.