New York State Court of Claims

New York State Court of Claims

DICKSON v. THE STATE OF NEW YORK, #2003-015-315, Claim No. 102105, Motion No. M-66145


Court denied claimant's motion to amend and supplement bill of particulars on eve of trial absent showing of reason for the delay and demonstration of special and extraordinary circumstance.s

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:
THE LAFAVE LAW FIRM, LLPBy: David E. Rook, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Belinda A. Wagner, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
February 20, 2003
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimants' motion for leave to amend and supplement their verified bill of particulars to supply more detailed descriptions of the defendant's alleged negligence is denied. The claim seeks money damages for personal injuries[1] sustained by claimant William Dickson at approximately 8:30 a.m. on November 19, 1998 at the Capital District Psychiatric Center, a State operated mental health facility in Albany, New York. According to the allegations set forth in the claim Mr. Dickson was attacked and beaten by a patient at the facility. The details of the attack are set forth in paragraph six of the claim as follows:
That said injuries and damages for which claim will be made arose in the following manner: A patient of the Capital District Psychiatric Center assaulted another patient, which required the nurse to call for assistance, which Claimant provided to the nurse. The patient was then escorted to a secluded room and it was determined the patient would need to be medicated to calm down the patient. The patient refused medication, and it was decided that the patient would have to have the medication injected. At this time, the patient struck the nurse, and Claimant intervened, and was subsequently struck in the face by the patient. The patient then wrestled Claimant to the floor, and the patient then slammed Claimant's head on the concrete floor a couple of times, before other staff entered the room and was [sic] able to subdue the patient.
Claimant allegedly sustained injuries to his spinal cord and left shoulder and arm as a result of the incident.

The verified claim was filed and served on March 10, 2000 and the defendant's verified answer was served on April 21, 2000. Claimants served their verified bill of particulars on February 8, 2001 and the note of issue and certificate of readiness were filed on August 13, 2002. The matter is set for trial on March 19, 2003. On November 6, 2002 claimants served a document entitled "Supplemental Verified Bill of Particulars" which sought to provide additional disclosure regarding the defendant's Demands numbered 9, 10 and 14. The defendant objected to the new responses to Demand number 14 and this motion to compel acceptance of the supplemental verified bill of particulars (Claimants' Exhibit E) ensued.

Rule 3043 (b) of the CPLR provides:
(b) Supplemental bill of particulars without leave. A party may serve a supplemental bill of particulars with respect to claims of continuing special damages and disabilities without leave of court at any time, but not less than thirty days prior to trial. Provided however that no new cause of action may be alleged or new injury claimed and that the other party shall upon seven days notice, be entitled to newly exercise any and all rights of discovery but only with respect to such continuing special damages and disabilities.
Since the matters sought to be added to the previously served bill of particulars and objected to by defense counsel relate to claimants' theories of negligence and are not related to continuing special damages and disabilities the motion is deemed to be one seeking to amend rather than supplement the bill. Accordingly, the motion is governed by CPLR Rule 3042 (b) which states:
(b) Amendment.
In any action or proceeding in a court in which a note of issue is required to be filed, a party may amend the bill of particulars once as of course prior to the filing of a note of issue.
As noted above claimants filed their note of issue and certificate of readiness on August 13, 2002. The instant motion was served and filed more than four months later.

Despite the policy of the Courts permitting amendments to bills of particulars under most circumstances it has been held that "[l]eave to serve an amended bill of particulars should not be granted where a certificate of readiness has been filed, except upon a showing of special and extraordinary circumstances" (Sampson v Barber Salvage Co., 78 AD2d 977). "While the general rule is that leave to amend is to be freely given in the absence of a showing of prejudice (see, Mathiesen v Mead, 168 AD2d 736), judicial discretion in allowing such an amendment on the eve of trial should be ' "discreet, circumspect, prudent and cautious" ' (Smith v Sarkisian, 63 AD2d 780, 781; affd on mem below 47 NY2d 878, quoting Symphonic Elec. Corp. v Audio Devices, 24 AD2d 746)" (Thompson v Connor, 178 AD2d 752, 753). It has further been held that an amendment offered after the note of issue and certificate of readiness have been filed should be permitted only upon a showing that the amendment is justified "by submitting an affidavit pointing to the discovery of additional facts or otherwise supplying an adequate explanation for the delay" (6 Carmody-Wait 2d 36:55; Perricone v City of New York, 96 AD2d 531 affd, in part, app dismissed, in part 62 NY2d 661; see also Thompson v Connor, supra; Sampson v Barber Salvage Co., 78 AD2d 977).

Here the affirmation of claimant's attorney states "the proposed amendments merely reflect all available information obtained through discovery". In his reply affirmation counsel asserts that "every additional statement regarding negligence is merely more descriptive of one of the above [i.e., previous bill's] theories of negligence." (Reply affidavit paras 3 and 5). Counsel made no attempt to explain the delay in making the motion and has clearly not demonstrated "special and extraordinary circumstances" (Sampson v Barber Salvage Co., supra).

Finally, it appears to the Court that "[t]he proposed amendatory matters may be offered in evidence by [claimant] under the existing bill of particulars" (Dohanich v Gallagher, 39 AD2d 939) making the proposed amendments unnecessary even if properly supported. Claimants' motion is, accordingly, denied.

February 20, 2003
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated December 13, 2002;
  2. Affirmation of David E. Rook dated December 13, 2002 with exhibits;
  3. Affirmation in opposition of Belinda A. Wagner dated January 7, 2003;
  4. Affirmation of David E. Rook dated January 13, 2003.

[1]Ms. DeSalvo's claim is derivative and seeks to recover for the loss of her husband's services.