Miceli v. Riley, 51 A.D.2d 972, 380 N.Y.S.2d 706 (N.Y.A.D. 2 Dept., Mar 01, 1976)

Supreme Court, Appellate Division, Second Department, New York.
Giacoma MICELI, Appellant,v.Arthur RILEY et al., Respondents, et al., Defendants.

March 1, 1976.

 In action to recover possession of real property, plaintiff appealed from an order of the Supreme Court, Suffolk County, which granted respondents' motion to vacate subpoena duces tecum served on their counsel, denied plaintiff's motion to direct said counsel to appear for examination before trial as a witness, and granted respondent's motion for protective order as to plaintiff's demands for bill of particulars.  The Supreme Court, Appellate Division, held that an attorney's verification could not subject him to an examination before trial as a witness; and that where there was only one answer on behalf of respondents, and only one demand for bill of particulars addressed to the affirmative defenses, one bill of particulars was proper.
 Affirmed as modified.

West Headnotes
[1] Pretrial Procedure  97307Ak97 Most Cited Cases (Formerly 127k48  Discovery)
Attorney's verification could not subject such attorney to examination before trial as witness.
[2] Pleading  326302k326 Most Cited Cases
Where there was only one answer on behalf of respondents and only one demand for bill of particulars addressed to affirmative defenses, one bill of particulars was proper.  CPLR 3042. **707 Tilles & Bronchick, Huntington Station (Frank Bronchick, Huntington Station, of counsel), for appellant.
 Dreyer & Traub, New York City (Charles Feit and Samuel Kirschenbaum, New York City, of counsel), for respondents.

 Before HOPKINS, Acting P.J., and MARGETT, DAMIANI, CHRIST and HAWKINS, JJ.

 MEMORANDUM BY THE COURT.
 *972 In an action Inter alia to recover possession of real property, plaintiff appeals from an order of the Supreme Court, Suffolk County, dated November 7, 1975, which (1) granted respondents' motion to vacate a subpoena duces tecum served on their counsel, (2) denied her motion Inter alia to direct said counsel to appear for examination before trial as a witness and (3) granted respondents' further motion for a protective order as to plaintiff's demands for bills of particulars addressed to respondents' affirmative defenses.
 Order modified by adding to the third decretal paragraph thereof, after the word 'granted', the following: 'to the *973 extent that respondents will be required to serve only one bill of particulars.'  As so modified, order affirmed, without costs or disbursements.  Respondents' time to serve the bill of particulars is extended until 20 days after entry of the order to be made hereon.
 [1][2] Plaintiff's contention that an attorney's verification may subject such attorney to an examination before trial as a witness is **708 singularly without merit.  Since there is only one answer on behalf of respondents, only one demand for a bill of particulars addressed to the affirmative defenses and, accordingly, one bill of particulars, is proper (CPLR 3042).  Respondents' other objections to the demand do not overcome the overall propriety of the 21 items requested to be particularized.
380 N.Y.S.2d 706, 51 A.D.2d 972
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