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Kozak v. Berger

42 Misc. 2d 119 Court Supreme Court, Special Term, Erie County, Decision date 1964-02-25 English

Delivered by Matthew J. Jasen, J.

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p. 119
Rudolph Kozak, Individually and as Guardian ad Litem of Richard Kozak, an Infant, Plaintiff, v. Arthur W. Berger, Defendant.
Supreme Court, Special Term, Erie County,
February 25, 1964.
Gitak & Vinolus (Peter A. Vinolus of counsel), for plaintiff. Miles, Cochrane, Grosse, Rossetti S Lord (Lowell Grosse of counsel), for defendant.

Defendant seeks to preclude the plaintiff for failure to comply with defendant’s demand for a bill of particulars (CPLR 3042, subd. [d]).

Paragraph “Sixth” of plaintiff’s complaint alleges certain violations of ordinances and statutes by defendant herein and pursuant thereto, defendant did demand of plaintiff under para

p. 120
graph two of the bill of particulars, “ a statement of each and every statute and ¡ordinance which plaintiff claims to have been violated by the defendant. ’ ’

That in response to said demand, the plaintiff set forth the following: " 2. Plaintiff will rely upon the Judge’s charge to jury.”

'Since plaintiff in his complaint alleges in paragraph “ Sixth ” that defendant, among other things, negligently violated ‘1 the ordinances of the City of Buffalo, and the laws of the State of New York relative to speed and caution required of the operator of a motor vehicle ’ ’, he is required to identify the statutes and ordinances claimed to have been violated by defendant.

(See Smith v. Woodbury Farms & Realty Corp., 265 App. Div. 885 ; Rotondi v. Vaughan, 28 Misc 2d 656 ; Hanlon v. Geary, 19 Misc 2d 827 , 828; Dugan v. Dugan, 156 N. Y. S. 2d 937 ; Wurms v. Kingsley, 156 N. Y. S. 2d 532 ; Noonan v. R. K. O. Keith-Orpheum Theatres, 156 N. Y. S. 2d 237 ; Holmes v. Cook, 156 N. Y. S. 2d 171 ; Sepe v. Johnson, 157 N. Y. S. 2d 781 , 783; Ahearn v. Manzione, 80 N. Y. S. 2d 89 ; Wassermann v. Finch & Co., 80 N. Y. S. 2d 88 ; Levine v. Rosenman, 192 Misc. 1010 ; Rubin v. City of New York, 192 Misc. 745 .)

The motion is granted unless a bill of particulars is served furnishing the information sought within 20 days after service of a copy of the order entered hereon.

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