Defendant brings a motion to preclude pursuant to CPLR 3042(c) for failure to
provide a verified bill of particulars as demanded. Claimant opposes the
The CPLR 3042(c) provides "If 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 wilful, for
the imposition of penalties pursuant to subdivision (d) of this rule."
On February 12, 2001, defendant served a demand for a verified bill of
particulars upon claimant. A verified bill of particulars dated July 16, 2001,
was served upon defendant. By letter to claimant's counsel dated July 27, 2001,
defendant objected to the bill of particulars in some detail. Specifically,
defendant found paragraphs six through 12, 13 through 15, 18, 19, 29, 30, 31 and
34 objectionable. On February 22, 2002, claimant's counsel forwarded a letter to
defendant more specifically responding to defendant's demand for a bill of
particulars. After further difficulties, a telephone conference with counsel was
held on April 2, 2002, during which claimant's counsel agreed to provide more
specific responses to paragraphs six through 12, 13 through 15, 18 and 19. As
the Court's notes reflect, claimant's updated responses for paragraphs 29, 31,
and 34, as contained in her counsel's letter dated February 22, 2001, were
When no further response was forthcoming from claimant, defendant filed this
motion on June 11, 2002. Claimant's counsel forwarded an amended verified bill
of particulars dated June 28, 2002, answering paragraphs six through 16, 18, 29
through 31, and 34. To determine what, if any, items were still in dispute, a
second telephone conference with counsel was conducted on August 28, 2002. The
assistant attorney general forwarded a letter to the Court dated August 30, 2002
advising of items still in dispute, and claimant's counsel submitted a
responding letter dated August 30, 2002. From this correspondence, it seems that
the defendant still has concerns with claimant's bill of particulars, paragraphs
18, 19, 29, 30, 31 and 34. This decision will address these items.
Initially, there is absolutely no showing of "wilful" noncompliance here.
Claimant had made several efforts to adequately respond to defendant's demands
and has expressed, through her counsel, a willingness to provide additional
information if necessary. Therefore, defendant is not entitled to an order of
preclusion. However, in the interests of judicial economy this Court will treat
the motion as one to compel compliance and will address each objectionable item
In the demand, item 18 requests: "A statement setting forth which, if any, of
the alleged injuries will be claimed to be permanent, specifying the nature and
location, duration and extent of any such alleged permanent injuries."
Claimant's amended response provides, "Many of claimant's injuries, to a certain
extent, are believed to be permanent. Permanent injuries include but are not
limited to, spleen loss, liver damage and injuries to her brain and knees."
This response adequately particularizes what injuries are claimed to be
permanent and is, therefore, adequate.
In the demand, item 19, defendant requests, "[i]f any claimant alleges that any
disability or permanency resulted from any such injury, specify the nature,
character, degree and duration of each such disability." Claimant responded in
the original bill of particulars "[s]ee the answer to question number 18" to
which she had responded "all of the above-mentioned injuries are permanent."
This response is inadequate. Defendant is entitled to a description of the
injuries from which claimant will assert she suffers a disability and a
description of the extent of that disability.
In the demand, item 29 requests "[a] statement setting forth the number of
times, including dates that each claimant received treatment for any alleged
injuries: (a) at a hospital, (b) at the office of a provider of health services;
and (c) at home." Claimant originally responded that the request was improper,
but supplemented the response in the amended bill of particulars referring
defendant to the medical records previously supplied. Defendant is entitled to
the dates of treatment for injuries as well as the location. Merely referring
defendant to the documents is insufficient (
Compare, Bass v Kansas,
198 AD2d 693).
In the demand, item 30 seeks, "[a] statement setting forth each and every
pursuit of life which each claimant will claim he/she performed prior to the
date of the occurrence alleged in the claim and a further statement setting
forth each pursuit which each claimant will claim he/she was unable to perform
subsequent to that occurrence, setting forth the length of time, including
dates, which such disability will be claimed to have continued." This demand is
over broad and vague, and therefore, improper.
Defendant's demand item 31 provides, "[s]tate whether any claimant was required
to use any cast, garment, or prosthesis in connection with the injuries alleged
in the claim, and if so, describe the article, state the days and dates the same
was worn or used, and the name and address of the individual who prescribed it."
Claimant responds, "Claimant was required to use a wrapping garment around her
waist for the period from the date of accident, January 14, 1999 through at
least June 1999. The garment was worn daily until June 1999. The doctor that
prescribed the garment was Dr. Charles Hodge at University Hospital, 750 Adams
Street, Syracuse, New York 13210." This is a completely adequate
The demand item 34 requests, [a] detailed and specific statement of the amounts
which will be claimed for special damages, specifically itemizing the following,
specifying the names and addresses of each such provider: (a) ambulance services
(b) physicians' services (c) hospital services (d) dental services (e) x-ray
services (f) prescription drugs (g) prosthetic devices (h) nursing services (i)
any other professional health services together with the nature of said service;
and (j) any and all other items of special damages which will be claimed by each
claimant." Claimant, in her amended bill, has specified the exact amounts
incurred for each of the above-enumerated expenses. This response is
appropriate and adequate (
See, Slawson v Murphy,
37 NYS2d 930).
Accordingly, based upon the foregoing, defendant's motion is granted to the
extent that claimant is directed to provide to defendant and file with the Clerk
of the Court within 30 days of the date this order is filed, an amended bill of
particulars responding to items19 and 29 in defendant's demand for a verified
bill of particulars dated February 12, 2001. Defendant's motion is in all other