Stephen Clorofilla v Town of New Castle

Clorofilla v Town of New Castle 2006 NY Slip Op 06818 [32 AD3d 976] September 26, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, November 08, 2006

Stephen Clorofilla, Respondent,
v
Town of New Castle et al., Appellants.

—[*1]

In an action to recover damages for breach of contract, the defendants appeal from an order of the Supreme Court, Westchester County (Jamieson, J.), entered July 28, 2005, which denied their motion, in effect, to strike the portions of the plaintiff's bill of particulars which asserted that the plaintiff sustained certain emotional and physical injuries as the result of the defendants' conduct, and to preclude the plaintiff from introducing any evidence in support thereof at trial.

Ordered that the order is affirmed, with costs.

The Supreme Court properly denied the defendants' motion, in effect, to strike the portions of the plaintiff's bill of particulars which asserted that the plaintiff sustained certain emotional and physical injuries as the result of the defendants' conduct. The portions of the bill of particulars at issue were directly responsive to the demand therefor, which sought, inter alia, "every additional item of damage or expense alleged to have been sustained by the plaintiff including separate statements for any alleged emotional injuries," and detailed information about any medical treatment received as a result of the alleged occurrence.

Moreover, the Supreme Court providently denied that branch of the motion which was to preclude the plaintiff from introducing any evidence in support of his claims of physical and emotional injuries at trial, on the basis that this determination was better left to the trial judge. Miller, J.P., Ritter, Luciano, Spolzino and Dillon, JJ., concur.