New York State Court of Claims

New York State Court of Claims

MOJICA v. THE STATE OF NEW YORK, #2001-015-142, Claim No. 102294, Motion No. M-62986


State's motion to compel service of bill of particulars pursuant to CPLR Rule 3042(c) granted. Claimant directed to serve bill within 30 days of service of copy of decision and order with notice of entry. Motion for relief requested pursuant to non-relevant sections of CPLR denied without prejudice to motion pursuant to CPLR 3124 to compel responses to outstanding omnibus demands.

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:
Miguel Mojica, Pro SeNo Appearance
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: G. Lawrence Dillon, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
April 23, 2001
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's motion for an order pursuant to Rule 3042 (c) directing the claimant to serve a bill of particulars in response to the defendant's demand therefore dated June 9, 2000, within thirty days of the service upon him of a copy of this decision and order with notice of entry is granted. The request for relief pursuant to CPLR Rule 3024 and § 3126 is denied without prejudice to the making of a motion pursuant to Rule 3124 to compel a response to the defendant's omnibus discovery demands also dated June 9, 2000. This is a claim by an inmate appearing pro se to recover for personal injuries allegedly resulting from the medical malpractice and negligence of a registered nurse employed at the Oneida Correctional Facility on December 22, 1999. The claim was filed on April 14, 2000.

On June 9, 2000 the defendant served a demand for a verified bill of particulars and a separate omnibus demand for names and addresses of witnesses, medical authorizations, employment and/or school records authorization, statements, disclosure of expert witnesses, discovery and inspection of collateral sources, discovery and inspection of photographs, notice of examination before trial and medical records. It is alleged on the motion that claimant has not objected to or responded to any of said demands. A motion pursuant to CPLR Rule 3042 which is entitled "[p]rocedure for bill of particulars" relates exclusively to a bill of particulars which offers "a more expansive statement of the pleader's contentions" (Siegel, NY Prac § 238 at 382 [3d ed]). Rule 3042 does not provide a mechanism for the Court to compel responses to any of the defendant's other demands. Such a device exists in CPLR Rule 3124 but defendant has not requested relief pursuant to that rule on the instant motion.

The defendant has also requested relief pursuant to CPLR Rule 3024 which is entitled "[m]otion to correct pleadings." Such relief is not available on this motion since counsel's affirmation in support is not addressed to any item of relief provided for in that rule. Likewise relief pursuant to CPLR § 3126 is not available absent proof that claimant has disobeyed an order for disclosure or wilfully failed to disclose information. No such proof was offered here.

Accordingly, relief will be limited to directing the claimant to serve a bill of particulars within 30 days of receipt of this decision and order with notice of its entry.

April 23, 2001
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated January 22, 2001;
  2. Affirmation of G. Lawrence Dillon, dated January 22, 2001 with exhibits.