New York State Court of Claims

New York State Court of Claims

BUCCHAN v. THE STATE OF NEW YORK, #2004-009-47, Claim No. 105241, Motion No. M-68633


Defendant's motion to strike the note of issue was denied.

Case Information

RAHIM BUCCHAN, an Infant Under the Age of 14 years, by His Mother and Natural Guardian, DIANNE MITCHELL, and DIANNE MITCHELL, Individually
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:
BY: Godosky & Gentile, P.C.,
David M. Godosky, Esq.,Of Counsel.
Defendant's attorney:
Attorney General
BY: Heather R. Rubinstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
August 24, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has brought this motion seeking an order striking the note of issue and certificate of readiness previously served and filed by claimant.

The following papers were considered by the Court in connection with this motion:
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.

August 24, 2004
Syracuse, New York

Judge of the Court of Claims