Anzalone v. Preferred Mutual Insurance

In an action to recover the proceeds of a fire insurance policy, the defendant appeals from an order of the Supreme Court, Orange County (Colabella, J.), dated August 13, 1985, which granted the plaintiffs’ motion for a further bill of particulars. Order reversed, on the law, with costs, and motion denied. CPLR 3042 (d) provides that where a bill of particulars is regarded as defective, in the absence of special circumstances, a motion for preclusion or for service of a further bill must be made within 10 days after receipt of the defective bill (Hess v Wessendorf, 102 AD2d 926). At bar, the plaintiffs waited over two months from the time they were served with the original bill before bringing their motion for service of a further bill, and failed to assert the existence of any special circumstances in their supporting papers. Moreover, their argument, raised for the first time on appeal, that their attempt to secure the 492 defendant’s voluntary compliance by serving a demand for a further bill of particulars some 20 days after receiving the allegedly defective bill constitutes special circumstances, is without merit. A motion pursuant to CPLR 3042 (d) is the exclusive remedy for a defective bill. There is no authority under the statute to return a defective bill or to request a further bill (Lutza v Bollacker, 36 AD2d 789; Security Natl. Bank v Green, 31 AD2d 641; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, C3042:6, p 684). Lazer, J. P., Bracken, Brown, Lawrence and Kooper, JJ., concur.