New York State Court of Claims

New York State Court of Claims

WAUL v. THE STATE OF NEW YORK, #2001-015-165, Claim No. 102787, Motion No. M-63384


Pro se claimant's motion misidentifying section of CPLR under which relief was sought converted to motion to compel further particularization pursuant to CPLR 3042 (c) and as such motion it was, in part, granted.

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:
Andre Waul, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: G. Lawrence Dillon, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
July 25, 2001
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's motion for an order pursuant to CPLR 3032(c) and (d)[1] precluding the defendant from offering evidence at trial with regard to items requested in claimant's demand for a bill of particulars dated February 16, 2001 is converted to a motion to compel responses to a demand for a bill of particulars pursuant to CPLR 3042(c) and as such is granted in part and denied in part as set forth below (see, CPLR § 2001). By this claim the claimant seeks to recover monetary damages attendant to the loss, destruction or theft of certain items of personal property allegedly resulting from the negligence of Department of Correctional Services employees at Oneida Correctional Facility.

The instant motion is based upon claimant's service of a demand for a bill of particulars upon the defendant's attorney on February 16, 2001. Claimant alleges that the defendant's attorney neither responded to the demand within 30 days nor moved against it pursuant to CPLR 3042 (a). Although prior to its 1994 amendment (see, L 1994, ch 562, § 2, eff Jan. 1, 1995) section 3042 required such a motion with regard to demands deemed objectionable by the recipient, the current statute merely requires a party to specify his or her objections to demands deemed inappropriate with reasonable particularity. Section 3042 (c) as presently written provides "[i]f a party fails to respond to a demand in a timely fashion or fails to comply fully with a demand, the party seeking the bill of particulars may move to compel compliance, or, if such failure is willful, for the imposition of penalties pursuant to subdivision (d) of this rule." Subdivision (d) which is entitled "[p]enalties for refusal to comply" requires a court to determine wilfulness prior to the imposition of any penalty including, inter alia, the preclusion of testimony at trial related to items demanded in a bill of particulars but not supplied.

Claimant's remedy for the alleged failure of defendant's attorney to supply a proper bill of particulars is a motion to compel compliance rather than a motion seeking an order of preclusion.

In response to this motion the defendant's attorney supplied a belated bill of particulars dated April 25, 2001 along with an affidavit of service of such bill upon the claimant. In his reply papers the claimant acknowledged receipt of the responses but asserted specific objections thereto. Although the defendant's service of the bill of particulars could be viewed as rendering moot the instant motion, it appears to the Court that the interests of judicial economy would best be served by a review of the responses in light of the claimant's objections.

The Court upon such review makes the following findings with regard to claimant's particularized demands:
Item #1: Demand is improper since the information demanded is within the knowledge of the claimant.

Item #2: Demand is improper. Receipts for inmate's personal property would not be in the defendant's possession.

Item #3: Items demanded are not the proper subject of a bill of particulars. Forms related to the claimant's administrative claim and appeal have been provided in the defendant's response to claimant's omnibus discovery demands.

Item #4: Same as #3 (above).

Item #5: Items sought are not the proper subject of a bill of particulars.

Item #6: If DOCS employees took action to recover claimant's missing property from the U.S. Postal Service following its alleged disappearance the defendant shall specify what action was taken, by whom and the result achieved. If the answer is none the defendant shall so state.

Item #7: If the defendant knows of any State department or agency, other than DOCS, which took action to recover claimant's missing property from the U.S. Postal Service following its alleged disappearance defendant shall specify what State department or agency undertook such action, when it was taken and the result achieved. If the answer is none the defendant shall so state.
Item #8: Demand is not properly the subject of bill of particulars.

The claimant's motion is granted to the extent that defendant's attorney is directed to serve and file a further bill of particulars addressed to items #6 and #7 as set forth above within 30 days of service of a copy of this decision and order by the Clerk of the Court.

July 25, 2001
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:

  1. Notice of motion dated April 11, 2001;
  2. Affidavit of Andre Waul sworn to April 11, 2001, with exhibits;
  3. Defendant's response to claimant's motion for preclusion dated April 25, 2001, with exhibits;
  4. Reply to defendant's response to claimant's motion for preclusion dated May 3, 2001.

[1]Rule 3032 is unrelated to the relief sought by claimant.