2) Notice of Cross-Motion and Affirmation in Support of the Cross-Motion and
in Opposition of Assistant Attorney General Michele M. Walls, filed May 28,
2002, with annexed Exhibits A-D (Walls Affirmation).
Filed Papers: Claim, filed February 14, 2002, Answer filed March 14,
The underlying Claim alleges Claimant, at all times relevant an inmate in the
care and custody of the Department of Correctional Services (DOCS), was
wrongfully confined in the Special Housing Unit from August 7, 2001 through
November 6, 2001.
On or about April 19, 2002 Claimant served the "Demand For Bill of Particulars"
(Walls Affirmation, Exhibit C) which is the subject of the instant
motions. By letter dated April 25, 2002 the Defendant objected to the demands
"as improper" and indicated it would not be responding (Walls
Affirmation, Exhibit D).
A bill of particulars, is a limited device, designed simply to amplify or
supplement a pleading, (Northway Engineering, Inc. v Felix Industries,
Inc., 77 NY2d 332, 335) and "relates to the burden of proof and requires
each party upon demand to provide particulars with respect to matters alleged in
that party's pleading" (Id., at 336). There is the general rule that a
party's failure to timely move against a demand for bill of particulars (see,
CPLR 3042 [a]) forecloses further inquiry into the merits of the demand (see,
e.g., Ryan v Beavers, 170 AD2d 1045). However, that general rule
does not apply where the demand is "palpably improper" (see, Nigro v
Nigro, 121 AD2d 833). Examples of demands that are palpably improper are
demands seeking material which is evidentiary in nature, irrelevant to
Claimant's claim or privileged or those which are unduly burdensome or relate to
matters of law (see, State of New York v General Electric Company, 173
AD2d 939 [citations omitted]).
Although the Court has some question whether Defendant's objection meets the
"reasonable particularity" requirement of CPLR 3042(a), upon review of the at
issue demands, all the demands are palpably improper. For example, demands
designated "C" through "H", seek the production of, inter alia
, Title 7 of the New York Code of Rules and Regulations) and
other evidentiary material. Moreover, the material sought relating to the
Misbehavior Report and Determination, appear to be appended to the Claim as
As to the dates of Claimant's confinement (Demands "A" and "B") those are
matters within Claimant's knowledge and more importantly, not part of
defendant's burden of proof in this wrongful confinement claim (Northway
Engineering, Inc. v Felix Industries, Inc., 77 NY2d 332, supra;
see also, Waul v State of New York, Ct Cl, Collins, J., July 25, 2001,
Claim No. 102787 UID No. 2001-015-165 [information within Claimant's knowledge
or possession not proper]).
Accordingly, Claimant's motion to compel is denied and Defendant's
cross-motion for a protective order is granted.