Cplr bill of particulars 30425/17/2023 ![]() If the intent was to comply with CPLR 2106, then the affirmation is also defective. The customary practice under rule 117 (now CPLR 3044) still prevails, otherwise there would be no uniformity with the pleadings. The answering affidavit of the plaintiffs' attorney avers that he verified the bill of particulars served. Under the new rule the verification on a copy must be conformed to the original verification in the same manner as required by rule 117 of the Rules of Civil Practice. 3044 was added to the new CPLR from rule 117 of the Rules of Civil Practice without change in substance. ![]() The affidavit failed to contain the affiant's and notary public's names. If the intent was to comply with CPLR 3044 the verification is defective. There is some confusion as to whether the plaintiffs were proceeding under CPLR 3044 or 2106 or perhaps a combination of both. The plaintiffs served copies of the bills of particulars both of which failed to include the affiant's name, either subscribed or conformed. In any event the service of the supplemental bill of particulars cures any tardiness on the part of the defendant to bring this motion. The record indicates that some delay is involved in the pleadings and the instant motion however, under the circumstances the court is of the opinion that the motions shall be entertained to prevent further delay. The plaintiffs served a supplemental bill of particulars with their answering affidavit on the motion, to which the defendant, by reply affidavit, raised the issue of the defective verification. The plaintiffs urge that they are responsive and that the originals were properly verified. The defendant avers that the bills of particulars are defective as to verification and not responsive. Orders modified, on the law and the facts, so as to grant the motions to preclude unless the plaintiff shall serve the bills of particulars within 10 days after the service upon him of the order of this court, and, as so modified, affirmed, with costs to the defendants.There are two basic questions to be determined on the present motion to preclude. Accordingly, the orders must be modified. Under the circumstances of this case, we feel that it was an abuse of discretion by Special Term to grant absolute orders of preclusion without first granting the orders on a conditional basis (see Barone v. It appears that plaintiff's attorney served the verified bills of particulars shortly before the preclusion orders were received by him and that the bills of particulars were refused. Special Term granted the motions and absolute orders of preclusion were subsequently entered. After plaintiff's attorney neither submitted papers nor appeared on February 21, 1978, the return date. In late January, 1978, motions to preclude were made by both defendants pursuant to subdivision (c) of CPLR 3042. The summonses and complaints were served on Septemand an answer by the defendant doctor, along with demands for a bill of particulars by both defendants, were interposed in the latter part of September, 1977. ![]() The action arose out of alleged medical malpractice inflicted upon plaintiff's decedent by the defendants Arnot-Ogden Memorial Hospital and Dr. P., and KANE, STALEY, MAIN and MIKOLL, JJ.Īppeal from orders of the Supreme Court at Special Term, entered Februand Main Chemung County, which granted defendants' motions for orders of preclusion pursuant to CPLR 3042. Gates, Binghamton, of counsel), for respondent J. Levene, Gouldin & Thompson, Binghamton (Gregory A. Palmer, Elmira, of counsel), for respondent Arnot-Ogden Memorial Hospital. Sayles, Evans, Brayton, Palmer & Tifft, Elmira (William R. Mega, Brooklyn, of counsel), for appellant. ![]() Supreme Court, Appellate Division, Third Department. The ARNOT-OGDEN MEMORIAL HOSPITAL et al., Respondents. MOSCHETTI, Sr., as Administrator of the Estate of
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