Star Industrial Service Co. v. Wooster 84 A.D.2d 833

Appeal by defendant from stated portions of an order of the Supreme Court, Kings County (Scholnick, J.), entered November 24, *8341980, which, inter alia, (1) granted plaintiffs leave to amend the ad damnum clause of their complaint by adding thereto the following: “granting plaintiffs exemplary damages including legal and counsel fees in the sum of at least $10,000 and costs”, and (2) directed plaintiffs to serve a further bill of particulars only as to Item No. 1 of defendant’s demand. Order modified by (1) deleting therefrom the phrase “including legal and counsel fees in the sum of at least $10,000 and costs” and (2) adding thereto a provision that plaintiffs shall provide a further bill of particulars with regard to Item Nos. 2 and 3 of defendant’s demand. As so modified, order affirmed insofar as appealed from, without costs or disbursements. Plaintiffs shall serve the further bill of particulars within 20 days after service upon them of a copy of the order to be made hereon, with notice of entry. It was proper to permit plaintiffs to amend their ad damnum clause to include a claim for exemplary damages (cf. Walker v Sheldon, 10 NY2d 401, 405; Knibbs v Wagner, 14 AD2d 987), but, as exemplary damages or otherwise, attorneys’ fees are not available in this case, there being no statutory authority providing for them (cf. City of Buffalo v Clement Co., 28 NY2d 241, 262-263; Doe v Roe, 93 Misc 2d 201, 216). In addition, plaintiffs’ bill of particulars is not responsive to Item Nos. 2 and 3 of defendant’s demand, and they should furnish a further bill as to those items. Lazer, J. P., Rabin, Gulotta and Cohalan, JJ., concur.