New York State Court of Claims

New York State Court of Claims

SHANNON v. THE STATE OF NEW YORK, #2004-032-077, Claim No. 104244, Motion No. M-68327


Claimant's motion to preclude the defendant or to compel the defendant to provide a further response to claimant's demand for a bill of particulars is denied.

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:
Cecil Shannon, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Kevan J. Acton, Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
September 27, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


This is a medical malpractice action in which it is alleged that claimant has been denied treatment for Hepatitis C. Claimant now moves this Court for an order pursuant to CPLR Rule 3042(d) for an order precluding defendant from offering evidence at trial regarding the culpability of the claimant or of third parties, unless defendant provides a further response to claimant's demand for a bill of particulars within thirty days.

Claimant served a demand for a bill of particulars in which he requested that the defendant particularize the date, time and place of claimant's culpable conduct and of the culpable conduct of any third parties as alleged in defendant's answer (see Fifth and Sixth Affirmative Defenses) and the subsequent answer to claimant's amended claim (see Sixth and Seventh Affirmative Defenses).[1] Defendant's response to both demands was that discovery was incomplete, that claimant had not been deposed, and that particulars would be provided at the close of discovery.

Generally, a bill of particulars is an amplification of a pleading for the purpose of preventing surprise at trial. The Court agrees that claimant is entitled to an amplification of defendant's affirmative defenses alleging the culpable conduct of claimant and of third parties (see Institute for Design and Construction v City of New York, 168 AD2d 608 [2d Dept 1990]). This does not mean, however, that claimant is entitled to an immediate response. Defendant points out that claimant has not been deposed and that it is not yet in possession of all the information needed to particularize the culpability of, for example, any of the outside specialists and laboratories involved in claimant's care (Acton's affirmation, ¶¶ 2, 3 and 4). Defendant agrees to provide further particularization at the close of discovery or withdraw these two affirmative defenses (Acton's affirmation, ¶ 4). This Court will hold defendant to these assurances.

Claimant's motion to compel further responses to his bill of particulars is denied, without prejudice. If, at the close of discovery, defendant has failed to supplement its response to claimant's demand for a bill of particulars regarding the alleged culpable conduct of the claimant and of any third parties, or failed to withdraw these affirmative defenses, this Court will deem them withdrawn and prevent defendant from presenting proof on these defenses.

September 27, 2004
Albany, New York

Judge of the Court of Claims

The following papers were read and considered by the Court:

1. Supporting affidavit of Cecil Shannon, pro se dated March 23, 2004, with annexed demand for bill of particulars, defendant's response to demand for bill of particulars, and a proposed order;

2. Supporting affidavit of Cecil Shannon, pro se dated April 9, 2004;

3. Opposing affirmation of Kevan J. Acton, Esq., AAG;

4. Filed papers: claim; amended claim;[2] answer; and answer to amended claim.

[1] Claimant's amended pleading was incorrectly styled as an amended complaint. Accordingly, defendant served an answer to amended complaint.
[2] See footnote 1.