New York State Court of Claims

New York State Court of Claims

PEREZ v. THE STATE OF NEW YORK, #2000-015-070, Claim No. 101127, Motion No. M-61854


A bill of particulars may not include a reservation of a right to amend or supplement the bill.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Henry N. Diaz, Esquire
Defendant's attorney:
Hanlon, Veloce & WilkinsonBy: Richard P. Veloce, Esquire
Third-party defendant's attorney:

Signature date:
August 21, 2000
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The motion of the claimant for an order pursuant to CPLR 3042 (c) compelling the defendant to serve a bill of particulars in full compliance with the claimant's demand dated February 29, 2000 is granted to the extent of striking the reservation to amend or supplement the bill of particulars contained in responses one and ten of the defendant's bill of particulars verified June 26, 2000 and in all other respects is denied. In a claim filed on September 24, 1999, the claimant, an inmate, seeks to recover for personal injuries allegedly sustained on June 24, 1998 at the Washington Correctional Facility when in the course of traveling to the mess hall he tripped and fell upon a temporary steel footbridge which had been placed over a trench during the course of a construction project. The claim alleges negligence on the part of State employees. The answer, filed on October 29, 1999, raised various affirmative defenses and on February 29, 2000 the claimant served a demand for a bill of particulars regarding those defenses. Defendant served a response to the demand dated April 4, 2000 which stated, "PLEASE TAKE NOTICE that, as and for a response to the claimant's demand for a verified bill of particulars on affirmative defenses, defendant, the State of New York, will provide a response to same after completion of further discovery and examinations before trial pursuant to Coughlin v Festin and St. Peter's Hospital, 53 AD2d 800, 385 NYS2d 166". Not satisfied with that response, claimant made this motion for relief pursuant to CPLR 3042 (c). In response, the defendant has served a bill of particulars which, while providing more detailed responses to the claimant's demand, still seeks to reserve the right to amend or supplement the bill of particulars pending the completion of discovery.

"The purpose of a bill of particulars is to amplify the pleading, limit the proof and prevent surprise at the trial" (State of New York v Horsemen's Benevolent & Protective Assn. (N.Y. Div), 34 AD2d 769). There is no right to reserve in a bill of particulars a right to serve a supplemental bill of particulars at some future date without leave of court, although there are certain circumstances under which a supplemental bill of particulars is permitted by statute, and such a reservation must be stricken from the bill of particulars (Brady v Benedictine Hosp., 74 AD2d 937). The appropriate procedure when a party lacks sufficient knowledge to respond to a demand in a bill of particulars is to so state under oath (Public Serv. Mut. Ins. Co. v Flatow, 64 AD2d 514). This practice brings no injustice to the defendant as CPLR 3042 (b) permits a party to serve an amended bill of particulars as of right prior to the filing of the trial term note of issue and certificate of readiness.

August 21, 2000
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated June 8, 2000;
  2. Affirmation of Henry N. Diaz dated June 8, 2000, with exhibits;
  3. Affirmation and partial opposition of Richard P. Veloce dated June 23, 2000, with exhibit.