Marbarry Associates, Inc. v. Steinberg

— Appeal by defendant from so much of an order of the Supreme Court, Westchester County, entered June 23, 1975, as denied his cross motion for an order of preclusion. Appeal dismissed as moot, with $50 costs and disbursements to appellant. Since the demanded bill of particulars has been served, the appeal has been rendered moot (cf. Langer v Garay, 30 AD2d 942; Chambers v State of New York, 25 AD2d 792; Miglietta v Kennecott Copper Corp., 22 AD2d 874). Appellant’s contention that the bill of particulars is unresponsive to the demand cannot be resolved on this appeal; such contention can be pursued, if at all, by proper motion at Special Term (see 10 Carmody-Wait 2d, NY Practice, § 70.313). Appellate courts have frowned upon the indifferent attitude with which many practitioners have regarded the bill of particulars (see Hersh v Home Ins. Co., 284 App Div 428). To discourage the practice employed here, costs and disbursements have been awarded to appellant, notwithstanding the dismissal of his appeal as moot. Hopkins, Acting P. J., Cohalan, Christ, Brennan and Shapiro, JJ., concur.