Mikoll and Yesawich, Jr., JJ., dissent and vote to reverse in a memorandum by Mikoll, J. Mikoll, J. (dissenting). We respectfully dissent.
Supreme Court granted plaintiff’s motion for summary judgment upon the grounds that (1) Felix failed to comply with appropriate discovery demands, (2) a preclusion order had been entered with regard to the counterclaims, (3) Felix had not attended by a principal of the corporation for appropriate judicial inquiry, and (4) plaintiff had documented in its submissions entitlement to the relief sought.
*1135There should be a reversal. Summary judgment is a harsh remedy to be granted only when no issue of fact remains for resolution. Defendants’ answer to the motion for summary judgment, contained in the affidavit of Felix Petrillo, president of Felix, sets out their contention of the amount of back charges defendants claim they are entitled credit for, totaling $17,500, and its reconciliation calculations. Taking these contentions as true for purposes of the summary judgment motion, as we must, there is an issue of fact as to what, if any, amount remains due to plaintiff.
The scope of a bill of particulars is limited to matters on which the party upon whom demand is made has the burden of proof (Bounds v Mutual of Omaha Ins. Co., 37 AD2d 1008; see, 3 Weinstein-Korn-Miller, NY Civ Prac ¶¶ 3041.09, 3041.11). A plaintiff is not entitled to a bill of particulars where the defendant’s answer consists of mere denials and admissions and sets forth no defense or claims on which defendant could have the bill of particulars (McLure v Greco, 56 Misc 2d 1067). It is indicated from the record that the preclusion order referred to by Supreme Court in its grant of summary judgment applies merely to the counterclaims interposed by defendants in their answer. There still remains extant the general denial by defendants of any further amount due to plaintiff under their contract. The affidavit of Petrillo raises a question of fact as to what, if any, funds are due plaintiff.
Supreme Court’s reference to defendants’ failure to respond to discovery as a reason for granting summary judgment offers no basis for such a remedy. The record indicates that plaintiff sought production of a number of items including the subcontract between plaintiff and Felix, copies of change orders, field orders, the prime contract between Felix and Fallsburg, change orders and field orders related to the prime contract, copies of requisitions issued by Felix to Fallsburg, completion certificates, daily logs, and foreman reports. Felix failed to comply. The record discloses that plaintiff has not moved to force disclosure pursuant to CPLR 3124, nor has it sought penalties for Felix’s refusal to comply with the preclusion order or to disclose pursuant to CPLR 3126. Such requests must be made on notice (see, Coffey v Orbachs, Inc., 22 AD2d 317). We deem the imposition of sanctions via summary judgment to be inappropriate. Defendants received no notice that such relief would be sought.
Finally, Supreme Court’s reference to Felix’s failure to respond to its invitation to a court conference called to help *1136the parties resolve the litigation also constitutes no ground for the grant of summary judgment. The record discloses that Felix appeared by counsel who stated that she was fully empowered to participate in settlement negotiations. The absence of a principal of Felix or of records the court viewed as helpful to a settlement conference gives no support to the appropriateness of the grant of summary judgment.
The order and judgment should be reversed.