Spierer v Bloomingdale's
2005 NY Slip Op 03146 [17 AD3d 252]
April 21, 2005
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, June 22, 2005
Christopher Spierer v Bloomingdale's
Christopher Spierer et al., Appellants,
Bloomingdale's, a Division of Federated Department Stores, Inc., et al., Defendants, and Simmons USA, Respondent.
Order, Supreme Court, Bronx County (Stanley Green, J.), entered on or about October 22, 2004, which, inter alia, denied plaintiffs' motion to strike the interrogatories of defendant Simmons USA, and denied their request for a protective order, unanimously modified, on the law and the facts, to grant plaintiffs' motion insofar as to vacate the interrogatories, without prejudice to an application to the court for limited discovery, after the completion of physical examinations and depositions, and otherwise affirmed, without costs.
In this case, which has been extensively delayed because of stays resulting from bankruptcy filings by defendant Bloomingdale's, defendant served interrogatories when the matter was restored to the calendar, despite having received a response to a demand for a bill of particulars in 1994. Inasmuch as CPLR 3130 (1) prohibits the service of interrogatories upon a party served with a demand for a bill of particulars, the interrogatories should not have been allowed (see Sassower v New York News, Inc., 101 AD2d 1020, 1021 ).
In view of the age of this case, and the entry of new counsel in the proceedings, the vacatur we direct is without prejudice to an application by defendant, upon a showing of prejudice in the absence of the sought disclosure, to seek further discovery. Concur—Tom, J.P., Mazzarelli, Friedman, Gonzalez and Catterson, JJ.