John J. Napolitano v Anthony Polichetti

Napolitano v Polichetti 2005 NY Slip Op 08961 [23 AD3d 534] November 21, 2005 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 18, 2006

John J. Napolitano, Appellant,
v
Anthony Polichetti, Respondent.

—[*1]In an action, inter alia, for an accounting, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (Austin, J.), dated January 26, 2005, as denied that branch of his motion which was to strike the first affirmative defense alleging unclean hands based upon the defendant's alleged failure to comply with a demand for a verified bill of particulars with respect to that defense.

Ordered that the order is affirmed insofar as appealed from, with costs.

The defendant's verified bill of particulars was sufficient to "amplify the pleadings, limit proof and prevent surprise at trial" with respect to the defense of unclean hands; it is not a function of a bill of particulars to furnish evidentiary material (see Kenler v Weissbach, 61 AD2d 976, 977 [1978]). Consequently, the Supreme Court properly denied that branch of the plaintiff's motion which was to strike the affirmative defense alleging unclean hands based upon the defendant's alleged failure to comply with the demand for a verified bill of particulars with respect to that defense. Crane, J.P., Ritter, Goldstein and Lifson, JJ., concur.