Claimant's Reply 5
In this claim, claimant seeks damages in the sum of $43.24 alleging the loss of
certain items of personal property while claimant was incarcerated at Marcy
Correctional Facility. On or about March 25, 2004, defendant served, with its
Answer, a Demand for a Verified Bill of Particulars. Claimant served his
response to this Demand on or about April 5, 2004. Defendant's attorney
rejected this response, and returned it to claimant on or about April 5, 2004,
on the grounds that it was improperly verified.
Claimant then instituted the instant motion. As set forth in defendant's
response papers, claimant also provided to defendant a properly verified Bill of
Particulars with the motion papers which were served upon defendant.
In this motion, claimant seeks a determination from this Court as to the
sufficiency of the statement (in lieu of a verification) submitted with his
original Bill of Particulars, as well as an order assessing monetary sanctions
against defendant's attorney. Claimant contends that the actions of the
Assistant Attorney General in rejecting his original Bill of Particulars
constitutes a frivolous conduct. Claimant also alleges that the Assistant
Attorney General tampered with the original Bill of Particulars prior to
rejecting and returning the document to claimant.
Defendant acknowledges, however, that the Bill of Particulars served upon the
defendant with this motion contained a proper verification, and that such Bill
of Particulars was timely served. Claimant's request for a determination as to
the adequacy of his sworn statement attached to his original Bill of Particulars
has therefore been rendered moot.
With regard to claimant's request for monetary sanctions, CPLR 3126 authorizes
a court to penalize a party who refuses to obey an order directing disclosure or
"wilfully fails to disclose information which the court finds ought to have been
disclosed." Among the penalties that the court may impose are an order
resolving in favor of the moving party issues to which the information is
relevant; an order precluding the disobedient party from producing evidence or
the things or items of testimony being sought; an order striking the disobedient
party's pleadings, in whole or in part; an order staying further proceedings
until the demanded information is provided; or an order dismissing the action.
This list is not exhaustive and monetary sanctions may also be awarded to
sanction frivolous conduct (see Klein v Seenauth, 180 Misc 2d 213).
Because "the overriding objective of CPLR article 31 is not punitive but,
rather, the liberal and full disclosure" of all relevant information (id., 217,
citing Miller v Duffy, 126 AD2d 527, 528), any sanction imposed is to be
fashioned as narrowly as possible under the circumstances of each individual
case (see DiDomenico v C & S Aeromatik Supplies, 252 AD2d 41).
In this matter, defendant's attorney asserts that since the original Bill of
Particulars received by him from claimant did not contain a proper verification,
his only available remedy was to return those papers to the claimant (see
Lepkowski v State of New York, 1 NY3d 201).
Although defendant's attorney, at his option, could have accepted the Bill of
Particulars as originally served, the Court does not find that his conduct in
rejecting that Bill of Particulars has risen to the level of being willful or
contumacious so as to justify the drastic relief of sanctions available under
CPLR 3126. (See Fitterer v Riedlinger's Towing Serv., 271 AD2d 403, 404;
Kovacs v Castle Restoration and Constr., 262 AD2d 165, 166;
Remuneration Planning & Servs. Corp. v Berg & Brown, Inc., 151
AD2d 268, 269).
Furthermore, even though claimant contends that defendant tampered with the
original Bill of Particulars prior to rejecting it (by removing staples,
presumably in order to photocopy the Bill of Particulars), there is insufficient
evidence before the Court which would enable it to make such a finding. Even if
a copy was made, the Court finds that claimant would not have been prejudiced in
the prosecution of his claim.
Accordingly, based on the foregoing, it is
ORDERED, that Motion No. M-68306 is hereby DENIED.