The State's motion for summary judgment seeking an order dismissing the claim
due to claimant's failure to comply with the Court's prior orders compelling
service of a bill of particulars and responses to discovery demands is
granted. The instant claim seeks to recover the sum of $60,000.00 as
compensation for personal injuries sustained as a result of an alleged battery
of claimant by DOCS personnel at the Oneida Correctional Facility draft room on
March 31, 2000.
Claimant failed to serve and file a bill of particulars and responses to
outstanding discovery demands served upon him on July 19, 2000 prompting two
prior motions addressed in decisions and orders dated April 23, 2001 (filed
April 26, 2001) and October 1, 2001 (filed October 11, 2001). The latter
decision and order provided that if claimant failed to serve a bill of
particulars and responses to defendant's discovery demands within 45 days of
service upon him of a copy of the decision and order he would be precluded from
offering evidence at trial related to the items demanded therein. The decision
and order further provided that should claimant fail to timely serve the
required documents defendant could then move for summary judgment seeking
dismissal of the claim. The defendant now moves for such relief and claimant
has not opposed the motion.
The instant motion is supported by the affirmation of Assistant Attorney
General G. Lawrence Dillon dated December 14, 2001, a copy of the Court's
decision and order dated October 1, 2001, and an affidavit alleging service of
the notice of entry along with a copy of the October 1, 2001 decision and order
on October 22, 2001. It is further supported by a copy of claimant's undated
and unverified bill of particulars stamped "Received November 26, 2001" and a
copy of defense counsel's letter dated November 26, 2001 rejecting claimant's
unverified bill of particulars and providing notice pursuant to Rule 3022 of
the CPLR of the defendant's intention to treat the unverified bill as a nullity
and advising claimant of his continuing default.
The instant motion is based upon claimant's failure to supply a proper bill of
particulars or to provide any responses whatsoever to the defendant's discovery
demands despite this Court's conditional order to do so within forty-five days
of service of a copy of the October 1, 2001 decision and order.
There is no doubt that the Court's decision and order required claimant to
provide both discovery responses and a bill of particulars and that his failure
to serve either would support a motion to dismiss the claim. Since claimant has
not opposed the instant motion the allegations of defense counsel regarding the
lack of service of discovery responses stand unrefuted on the record entitling
the defendant to dismissal of the claim for claimant's failure to comply with
the Court's conditional order.
Additionally, however, the defendant has alleged and the claimant has not
refuted that although claimant attempted to provide a bill of particulars
defense counsel elected to treat the unverified bill as a nullity pursuant to
Rule 3022 of the CPLR and provided both notice of the State's intention to do so
and the reasons therefor to the claimant with due diligence.
With regard to due diligence the Court notes that claimant's purported bill was
date stamped "Received November 26, 2001" (Exhibit B) and defense counsel's
letter to claimant citing the Rule 3022 election bears the same date. It thus
appears to the Court that the defendant met the due diligence aspect of CPLR
3022 (see, Miller, Matter of, v Board of Assessors, 91 NY2d 82;
Salahuddin, Matter of, v LeFevre, 137 AD2d 937).
It is also clear that verification of the bill of particulars was required
here. Section 3044 of the CPLR requires verification of a bill of particulars
if the pleading to which it refers must be verified. Court of Claims Act §
11 (b) clearly mandates verification of a claim (see, Martin v State
of New York, 185 Misc 2d 799) and, accordingly, any bill of particulars
designed to amplify a claim in this Court by setting forth in greater
detail the nature of the allegations the party intends to prove (Northway
Eng'g Inc. v Felix Indus., 77 NY2d 332) must be verified pursuant to
section 3044. Since claimant's bill received by the defendant on November 26,
2001 lacks a verification the defendant could and did elect to treat it as a
nullity pursuant to Rule 3022 of the CPLR. Once such election was made and
conveyed to claimant with due diligence his attempt to comply with at least that
part of the Court's conditional order of October 1, 2001 failed. Since he never
served a corrected, verified bill after receiving defense counsel's letter of
November 26, 2001 he must be found to have defaulted on his obligation to serve
a proper bill.
Under these circumstances the Court's conditional order of preclusion became
absolute precluding the claimant from proving his case (see Di
Pietro v Duhl, 227 AD2d 515) and establishing the defendant's right to
dismissal of the claim on a motion for summary judgment (Barriga v Sapo,
250 AD2d 795; Di Pietro v Duhl, supra).
Accordingly, defendant's motion is granted and the claim is dismissed.