New York State Court of Claims

New York State Court of Claims

WALKER v. THE STATE OF NEW YORK, #2002-013-011, Claim No. 104033, Motion No. M-64535


Claimant's supplemental bill of particulars does not improperly add a new cause of action or enlarge the original pleading (CPLR 3043[b]).

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:
Defendant's attorney:
Attorney General of the State of New York
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 18, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


On February 20, 2002, the following papers were read on Defendant's motion for an order striking Claimant's "Further and Supplemental Bill of Particulars:"
1. Notice of Motion and Supporting Affirmation of James L. Gelormini, Esq. ("Gelormini Affirmation"), with Annexed Exhibits and Memorandum of Law

2. Affirmation in Opposition of Martin J. Rothschild, Esq. ("Rothschild Affirmation") with Annexed Exhibits and Memorandum of Law

3. Reply Affirmation of James L. Gelormini, Esq. ("Gelormini Reply Affirmation")

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.

Defendant 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 toilet
, and moves to have it stricken.[1]

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., 255 AD2d 927, 928).[2] 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 amended (id).

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 statement:

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.

March 18, 2002
Rochester, New York

Judge of the Court of Claims

  1. [1]Information provided in the submissions before me indicates the reason that knowledge of Claimant's weight may be so critical in this case. According to Claimant's counsel, when Claimant was examined upon arrival at the facility, the medical staff simply estimated his weight to be more than 350 pounds. After the incident, Claimant was weighed at an outside weighing station and it was determined that his weight was, in fact, 523 pounds (Rothschild Affirmation, ¶6). Counsel further indicates that Claimant was assigned to a housing unit that had wall-hung toilets, although it would have been possible to assign him to one with on-the-floor toilets.
  2. [2]In addition to asking that the allegation contained in the "Further and Supplemental Bill of Particulars" be stricken, Defendant anticipates that Claimant will seek to amend his claim to include a similar allegation and also asks that I rule, at this time, that a cause of action based on Defendant's alleged failure to obtain Claimant's exact body weight is sufficiently different in nature and character from the original notice of intention and claim that it constitutes a separate claim that, at this point, is time barred pursuant to Court of Claims Act §10(3).