SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

564 

CA 10-02404 

PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND GREEN, JJ. 

 

ROBERT M. BURGIO, AS ADMINISTRATOR OF THE 

ESTATE OF RANDALL P. BURGIO, DECEASED, AND 

ASHLEY C. BURGIO AND JILLIAN M. BURGIO, AS 

DISTRIBUTEES OF THE ESTATE OF RANDALL P. 

BURGIO, DECEASED, PLAINTIFFS-RESPONDENTS, 

 

V MEMORANDUM AND ORDER

CITY OF LOCKPORT, ROGER F. LAROACH, 

DEFENDANTS-APPELLANTS, 

ET AL., DEFENDANTS. 

WEBSTER SZANYI LLP, BUFFALO (RYAN G. SMITH OF COUNSEL), FOR

DEFENDANTS-APPELLANTS.

GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (CHARLES S. DESMOND, II, OF

COUNSEL), FOR PLAINTIFFS-RESPONDENTS. 

 

Appeal from an amended order of the Supreme Court, Niagara County

(Ralph A. Boniello, III, J.), entered February 5, 2010 in a personal

injury and wrongful death action. The amended order directed

plaintiffs to provide disclosure responses. 

It is hereby ORDERED that said appeal insofar as it concerns

various financial documents pertaining to decedent’s estate is

unanimously dismissed and the amended order is modified on the law by

directing plaintiffs either to provide defendants with further

particulars concerning defendants’ failure to maintain the vehicle in

question and the nature of any defect, unsafe condition, or lack of

necessary safety equipment, or to provide a sworn statement that they

do not now possess the information required for the further

particulars, in which event they shall serve a supplemental bill of

particulars to defendants within 90 days of service of the order of

this Court with notice of entry if they obtain such information during

the course of disclosure, and as modified the amended order is

affirmed without costs. 

Memorandum: On appeal from an amended order directing plaintiffs

to comply with certain disclosure requests, defendants contend that

Supreme Court erred in failing to provide more specific directives

with respect to the requests for various financial documents

pertaining to decedent’s estate. We conclude on the record before us

that Supreme Court provided defendants with all of the relief

requested with regard to those financial documents and defendants thus
-2- 564 

CA 10-02404 

are not aggrieved by that part of the amended order (see generally

CPLR 5511; Pramco III, LLC v Partners Trust Bank, 52 AD3d 1224, 1225). 

We therefore dismiss the appeal from that part of the amended order.

We agree with defendants, however, that they are entitled to

further particularization concerning plaintiffs’ allegation that they

failed to maintain the motor vehicle that collided with decedent’s

motor vehicle, as well as their allegation that defendants’ vehicle

was “defective, unfit, unsafe, in a state of disrepair, and lacking

necessary safety equipment.” Although defendants are correct that

plaintiffs failed to object to the numerous demands by defendants for

such information, we nevertheless review the propriety of the demands,

and we conclude that the demands were not palpably improper (see

Community Dev. Assn. v Warren-Hoffman & Assoc., 4 AD3d 755; Kern v

City of Rochester, 261 AD2d 904, 905). To the extent that plaintiffs

contend that they presently lack sufficient knowledge to respond to

those demands, we conclude that plaintiffs must provide a sworn

statement to that effect and to furnish a supplemental bill of

particulars to defendants if and when they obtain such information

during the course of disclosure (see Laukaitis v Ski Stop, 202 AD2d

554, 555; Hughes v General Motors Corp., 106 AD2d 703, 703-704; see

generally Mahar v Fichte, 298 AD2d 948). We therefore modify the

amended order accordingly.

Entered: April 29, 2011 Patricia L. Morgan

Clerk of the Court