Notice of Motion, Affirmation, with Exhibits 1,2
Affirmation in Opposition, with Exhibit 3
As set forth in defendant's moving papers, a note of issue and certificate of
readiness was served on the Attorney General on May 21, 2004. Court records
establish that this note of issue and certificate of readiness was filed with
the Clerk of the Court of Claims on May 25, 2004. Defendant has now moved for
an order striking this note of issue, contending that this claim is not ready
for trial. Defendant asserts that claimants have not adequately responded to
previously served Interrogatories, and has also failed to adequately respond to
a Supplemental Demand for Verified Bill of Particulars.
This claim seeks damages against the State for personal injuries suffered by
Rahim Bucchan, an infant, when he was injured during a visit to Cape Vincent
Correctional Facility on October 21, 2001. The claim has been brought
in a representative capacity by his mother, Dianne Mitchell, who has also
asserted an individual claim. The accident was apparently witnessed by Rahim
Bucchan's sister, Nia Bucchan.
On or about April 14, 2004, defendant served "Defendant's First Set of
Interrogatories", demanding answers from the witness, Nia Bucchan. On or about
April 20, 2004, claimants provided a response to these Interrogatories,
essentially refusing to answer them because the Interrogatories were not
directed to the claimants.
Pursuant to CPLR § 3130 and Rule 3132, Interrogatories are only available
against a party to the action. In this matter, Nia Bucchan, although related to
the claimants, is obviously not a party and the use of Interrogatories against
her is not permitted by the CPLR.
After receiving this response, defendant then served a "Supplemental Demand for
Verified Bill of Particulars" upon claimants. Claimants then responded on or
about May 10, 2004, objecting to virtually all of the demands on the basis that
such demands were "evidentiary in nature and improper for a Demand for a Bill of
Particulars". (See Exhibit D to Items 1,2).
The Court has reviewed the demands (see Exhibit C to Items 1,2), and it is
evident that defendant has attempted to obtain the same information through
these demands that it was unable to obtain through the previously served
Interrogatories. The demands all pertain to Nia Bucchan, and her actions and
observations on the date of the accident.
It is well settled that the purpose of a Bill of Particulars is to amplify the
pleadings, but it is not considered a discovery device utilized for the
disclosure of evidentiary details (State of New York v Horsemen's Benevolent
and Protective Association, 34 AD2d 769; Nuss v Pettibone Mercury
Corporation, 112 AD2d 744). In this matter, it is patently obvious that
defendant has attempted to obtain evidentiary material (i.e., Nia Bucchan's
observations of the accident) through the use of its "Supplemental Demand for
Verified Bill of Particulars", and claimants have provided a proper response.
Defendant has therefore not established any basis on which the note of issue
and certificate of readiness should be stricken. This claim will therefore be
conferenced at this Court's next available calendar call at which time a date
will be established for the trial of this claim. Counsel will be provided with
written notice by the Court as to the date and time for this conference.
Accordingly, it is
ORDERED, that Motion No. M-68633 is hereby DENIED.