4. Filed Papers: Claim; Answer; Verified Bill of Particulars; Supplemental
Verified Bill of Particulars
This is a personal injury claim that arose on February 26, 2000 at Livingston
Correctional Facility (Livingston). On that date, according to the claim,
Claimant was injured when he sat on a toilet located in the bathroom of A-1
dormitory and the toilet "disintegrated" underneath him, causing him to fall.
In Claimant's pro se
notice of intention (denominated "Notice of Claim"),
the State is charged with negligence in "allowing a dangerous and defective
condition to exist" and "in supplying me with inappropriate housing, to wit: the
housing unit I was originally placed in was not properly constructed for the
safety and well being of individuals of my size" (notice of intention,
¶¶ 3, 4). The claim itself, which was drafted by Claimant's
attorneys, does not specifically reference Claimant's weight, but it does allege
that Defendant failed to "adequately, sufficiently and properly supervise,
monitor and control the Claimant and the toilet facility area" (Claim, ¶
7). The claim also alleges that Claimant did not receive proper first aid
assistance or subsequent medical treatment.
In the initial response to
Defendant's demand for a verified bill of particulars, Claimant asserted that
the State's negligence consisted of failing to adequately design, construct,
maintain, control, operate, repair, and install the toilet and/or bathroom
facilities and "failure to provide the Plaintiff [sic] with a toilet and toilet
facility adequate, sufficient and proper for his weight and size" (Rothschild
Affidavit, 2nd Exhibit). A second, supplemental bill of particulars contained
no change in this theory of liability. In September 2001, Claimant served a
document entitled "Further and Supplemental Bill of Particulars" which contained
the following allegation of negligence:
In addition to all of the other acts
of negligence previously set forth, defendant failed to adequately,
sufficiently, or properly assess, measure and evaluate plaintiff's [sic] actual
body weight prior to the incident on February 26, 2000.
contends that this allegation presents a new cause of action and a new theory of
liability, one not based on the defective condition of Defendant's
, and moves to have it stricken.
There is no dispute that a bill of particulars, or a supplemental bill of
particulars, cannot be used to allege a new cause of action (CPLR 3043[b]), nor
may this device be used to "enlarge" the original allegations contained in the
claim or complaint. For example, where an original complaint alleged only
common law negligence and violation of Labor Law §246(1), the bill of
particulars could not add causes of action based on the alleged violation of
Labor Law §§200 and 240(1) (Sebring v Wheatfield Prop. Co.
AD2d 927, 928).
On the other hand, if the
opposing party raises no objection to such addition or enlargement, courts may
consider the original pleading to have been de facto
I do not agree with Defendant's conclusion that the statement quoted above sets
forth a new and independent cause of action. For one thing, any failure on the
part of the State to ascertain the correct weight of one of its inmates is not,
in and of itself, an act of negligence. Such a step would be negligent only in
relation to some purpose for which knowledge of an inmate's weight would be
needed. Claimant's notice of intention alleged that the toilets provided in the
housing unit to which Claimant was assigned were defective in that they were
"not properly constructed for the safety and well being of individuals of my
size" and the first bill of particulars, to which no objection was made by
Defendant, contained a similar reference. This provides ample connection
between the issue of Claimant's weight and the question of whether the toilet
was safe for him to use.
In addition, Defendant's own bill of particulars recognized that Claimant's
weight, and knowledge about Claimant's weight, were at issue in this claim.
When asked to particularize its affirmative defense that the injury was caused
by Claimant's own culpable conduct, Defendant responded with the following
Claimant failed to accurately or truthfully disclose his body weight; claimant
failed to request that toilet facilities he was using (or contemplated using) be
supported by reason of his body weight or to advise the defendant of the
possibility of the need for such a precautionary measure; claimant pushed down
on, and/or caused his weight to be inappropriately applied to, the toilet
facilities he was using at the time of his injury.
Thus, it has been acknowledged by both parties throughout the discovery phase
of this litigation that the issue of Claimant's weight and whether it was
reported to or known by State officials was and is an integral part of the first
cause of action. Claimant's "Further and Supplemental Bill of Particulars,"
therefore, did not improperly set out a new cause of action or raise a new
theory of liability.
It appears to the Court that Claimant's original bill of particulars was unduly
vague in its statements that the State was negligent in its design,
construction, maintenance, control, operation, repair, and installation of
toilet and bathroom facilities. The purpose of a bill of particulars is to
amplify the original pleadings, stating in greater detail the allegations
contained therein and to adequately inform the defending party as to the
specific acts of negligence that will be claimed (Moore v Chrysler Corp.,
100 AD2d 955; McKenzie v St. Elizabeth Hosp., 81 AD2d 1003; see
generally, Siegel, Practice Commentaries, McKinney's Cons Laws of NY,
Book 7B, CPLR C3041:2, at 478). The general, global statements contained in
Claimant's original bill of particulars provided little amplification of the
original pleading and did not specifically identify any concrete acts of
negligence. The statement to which Defendant now raises objections, on the
other hand, is an entirely appropriate "particular" of the negligence more
generally alleged in the claim.
Defendant's motion is denied.