
    In the Matter of the Estate of Angelo Lombardi, Deceased.
    Surrogate’s Court, Nassau County,
    March 15, 1961.
    
      Murray H. Greenspan and Jack Korshin for petitioner. Joseph L. Vetrone and James N. Gehrig for respondent.
   John D. Bennett, S.

This is a motion to strike out paragraphs 2 and 3 of respondent’s amended bill of particulars and to require respondent to serve a further bill of particulars.

The respondent herein takes the position that the petitioner has received all of the information to which she is entitled in the amended bill of particulars, and further, that respondent has made available therein whatever information he has in regard to these items.

Petitioner cities Burke v. Brown (180 Misc. 903, affd. 266 App. Div. 962), in support of her contention that the claim by the respondent at this time that he lacks the knowledge necessary for compliance with the remand for the bill of particulars is not timely, and that by waiting until after the motion to vacate the demand, he has waived this right. In opposition to this argument, the respondent cites Schlank v. East Riv. Bav. Bank (272 App. Div. 56).

Both of these cases are distinguishable on the facts from the case at bar. In Burke v. Brown (supra), the defendant Brown moved to vacate a demand for a bill of particulars on the law alone and made no claim of inability to furnish the particulars requested. Further, the court states therein (p. 904), “ It may well be said that he otherwise clearly indicated that he did have such information.”

In the present case, the respondent moved to vacate the demand or, in the alternative, to modify same. The demand was subsequently modified by the court and respondent has attempted to furnish his bill in answer to the demand as modified. The court will not, therefore, foreclose respondent from stating that he is unable to furnish the particulars demanded at this time.

As to item 2 of the demand and amended bill of particulars, respondent should make available in his amended bill of particulars, the time when petitioner allegedly refused to return to decedent’s home. The present particulars offered in the amended bill are insufficient and are stricken out. The respondent will be permitted to serve a further amended bill and furnish the “ time when ”, or to serve a sworn statement showing that he is unable to furnish that information.

As to item 3, since the alleged demand that petitioner’s return was by the terms of item 3 of the amended bill “ oral ”, respondent must state the information sought in sufficient detail to enable petitioner to meet his proof on the trial herein. Item 3 is also stricken from the amended bill, with leave to the respondent to serve a further amended bill containing reasonable details, or a statement under oath that he is unable to furnish same.

The further amended bill referred to herein must be served by respondent within 10 days from the date of the settlement of an order herein. Settle order on five days’ notice, with three additional days if service is made by mail.  