![]() We cannot agree with our dissenting colleague's position. A bill of particulars is not a form of disclosure. "Unlike the disclosure devices authorized in CPLR article 31, a bill of particulars is of limited scope and may not be used to obtain evidentiary material" ( Ginsberg v Ginsberg, 104 A.D.2d 482, 484). The purpose of a bill of particulars is "`to amplify the pleadings, limit the proof and prevent surprise at the trial'" ( Medaris v Vosburgh, 93 A.D.2d 882, citing Patterson v Jewish Hosp. We are aware that CPLR 3042 (a) requires a motion to vacate or modify improper demands. "The dilemma is that if a plaintiff fails to move pursuant to said section he may find himself required to answer improper demands or be subjected to motions to preclude. It may be for this tactical reason and not for lack of knowledge that improper demands are made for particularization * * * Therefore, if a demand for particulars is patently improper in the first instance, no penalty should ever attach for failure to respond" ( Patterson v Jewish Hosp. The demands here rejected called for "alternative" designs which plaintiff claims should have been used and call for "expert testimony and are evidentiary" ( see, Nuss v Pettibone Mercury Corp., 112 A.D.2d 744). Accordingly, they were patently improper in a bill of particulars. P., concurs in part and dissents in part and votes to modify the order appealed from only by deleting the provision which granted that branch of the defendant town's motion which was for an order directing the plaintiff to respond to item No. 20 and to deny that branch of the motion with leave to the plaintiff to serve a supplemental bill as to that item after appropriate pretrial disclosure, and otherwise to affirm the order appealed from, with a memorandum in which Bracken, J., concurs. While the immediate issue involves the meaning of "palpably improper", what we decide will likely affect the role that CPLR 3042 (a) will play in future bill of particulars jurisprudence. The provision requires a party unwilling to provide particulars in response to a demand for a bill of particulars to move for a protective order within 10 days of receipt of the demand. The Legislature has thus imposed the burden of obtaining protection against improper demands upon the party from whom the information is sought. Absent motions for a protective order, such demands will be enforced unless they are so far beyond the pale of propriety that they are "palpably improper" ( see, Coin v Lebenkoff, 10 A.D.2d 916 Tomasino v Prudential Westchester Corp., 1 A.D.2d 781). I believe the instant plaintiff's failure to move for a protective order constituted a waiver of his right to object to the items in issue here.
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