New York State Court of Claims

New York State Court of Claims

STEWART v. THE STATE OF NEW YORK, #2005-015-041, Claim No. 109099, Motion Nos. M-70366, CM-70390


Court denied motion seeking dismissal of claim and sanctions and granted cross-motion compelling names and addresses of claimant's fellow employees on construction project on which claimant was injured.

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:
Setright & Longstreet, LLPBy: Michael Longstreet, Esquire and Martha L. Berry, Esquire
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Burke, Scolamiero, Mortati & Hurd, LLPTerese Burke Wolff, Esquire appearing
Third-party defendant’s attorney:

Signature date:
September 26, 2005
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant herein moves for an order compelling service of a further bill of particulars and the production of medical authorizations previously demanded. Defendant also seeks an order dismissing the claim and awarding sanctions. Claimant opposed the motion and cross-moved for an order compelling the defendant to provide the names and last known addresses of personnel who worked on the construction project where claimant was injured and to produce copies of certain documents pertaining to the project. Subdivision (c) of Rule 3042[1] provides: "If a party fails to respond to a demand in a timely fashion or fails to comply fully with a demand, the party seeking the bill of particulars may move to compel compliance, or, if such failure is willful, for the imposition of penalties pursuant to subdivision (d) of this rule."

On May 4, 2004 defendant served a demand for a verified bill of particulars upon the claimant. Claimant served a verified bill of particulars in response to the demand on June 24, 2004. No objection to the bill was raised until defense counsel's letter of March 4, 2005 which objected to paragraphs 4, 5, 8, 10, 11, 12, 13 and 16 of claimant's bill. Efforts to avoid the instant motion were unsuccessful.
' "The purpose of a bill of particulars is to amplify the pleadings, limit the proof and prevent surprise at trial" ' (Hayes v Kearney, 237 AD2d 769, quoting Twiddy v Standard Mar. Transp. Servs, 162 AD2d 264, 265; see MacDormand v Blumenberg, 182 AD2d 991, 992). 'The "responses to a demand for a bill must clearly detail the specific acts of negligence attributed to each defendant" ' (Hayes v Kearney, supra at 769, quoting Miccarelli v Fleiss, 219 AD2d 469, 470). They need not, however, provide evidentiary material or information to be gleaned from expert testimony (see, Liddell v Cree, 233 AD2d 593, 594; Heyward v Ellenville Community Hosp., 215 AD2d 967). Notably, in a medical malpractice action, as in any action for personal injuries, the bill of particulars 'requires only a "[g]eneral statement of the acts or omissions constituting the negligence claimed" ' (Rockefeller v Hwang, 106 AD2d 817, 818 quoting CPLR 3043 [a][3]; see, Coughlin v Festin, 53 AD2d 800) Felock v Albany Med. Ctr. Hosp., 258 AD2d 772, 773.

Paragraph "4" of the defendant's demand requested that the claimant set forth an itemized and detailed statement of each and every injury suffered by the claimant. Claimant's response notes disc injuries to her lower back and neck with aggravation of a pre-existing condition or activation of a latent condition, a possible tear injury to her right hip causing inflammation and a possible meniscal injury of her right knee. The response further states that claimant suffers from lumbar radiculopathy and constant pain in her right flank and down her right leg along with lumbar radiculopathy. The Court deems this response to be sufficient except with regard to the alleged "aggravation of a pre-existing condition or an activation of a latent condition". Claimant shall provide a further response describing the pre-existing or latent condition and the manner in which the condition was aggravated or activated as a result of the subject incident. The response shall be served within 20 days of receipt of the decision and order herein.

Paragraph "5" of the demand requested that claimant set forth an itemized and detailed statement of each and every injury claimed to be permanent specifying the character, degree and cause of the permanency. Claimant's response was that all of the injuries have permanent aspects, asserting that the injuries resulted in moderate permanent partial disability and total disability from claimant's prior occupation. The cause of the permanency was said to be the injuries set forth in paragraph "4". This response was likewise sufficient.

Paragraph "8" requested information regarding how long a period of time, as a result of the alleged injuries, claimant was prevented from attending to her usual occupation and/or routine activities and the amount of wages or earnings claimed to have been lost by reason of the injuries. Claimant responded that except for a two month period (June 16, 2003 - August 20, 2003) she has been unable to work in her usual occupation since the date of the accident resulting in lost earnings in the amount of $1,000 - $1,600 per week or roughly $50,000 per year. The response is sufficient with reference to claimant's occupation but is inadequate with regard to the accident's effect upon claimant's routine activities. Claimant shall provide a response detailing what, if any, effect the accident has had on her routine activities and affix a dollar value, if any, to such loss.

Paragraph "10" of the defendant's demand requested that the claimant set forth an itemized and detailed statement of each and every expense incurred, or to be incurred, for medical and hospital care or other treatment of the claimant specifying the names and addresses of the persons with whom such expense has been incurred, or is to be incurred and the reasons for same. Claimant's response to this demand was clearly inadequate. Claimant shall provide the names and addresses of each medical service provider who attended or treated claimant following the accident and to the extent that such information is available the dollar amount charged for their services.

Paragraph "11" demanded a statement of each and every item of damage not requested in paragraphs "4" through "10" which claimant alleges to have been sustained as a result of the subject occurrence. Claimant responded by identifying pain and suffering, including loss of enjoyment of life, loss of earnings, medical expenses and other expenses. Except for "other expenses" claimant's response is deemed sufficient since the demand did not request information regarding the amount of damages claimed. Claimant shall provide the defendant an additional response describing in reasonable detail what, if any, "other expenses" have been incurred.

Paragraph "12" demanded an exact amount of damages claimed for which payments have been received from collateral sources. Claimant responded that there is a Workers' Compensation lien for payments made and that no expenses were paid by collateral sources. Claimant shall provide the total dollar amount of the Workers' Compensation lien to date.

Paragraph "13" demands that claimant state the source and the amount or extent of anticipated collateral source coverage. Claimant's response that there are no collateral sources other than Workers' Compensation is sufficient.

Paragraph "16" demands that claimant "[s]tate what the damages consist of and how the amounts claimed were determined". The claimant cited pain and suffering to be determined by the Court and otherwise referred the defendant to the responses provided in paragraphs "8" (lost earnings), "10" (past medical expenses) and "17" (future medical expenses). The Court has already determined that the statement of past lost wages contained in paragraph "8" was sufficient. Anticipated future lost earnings are dependent upon expert proof at trial and need not be stated.

The decision herein has also previously addressed the issue of past medical expenses. With regard to future medical expenses, the claimant shall to the extent practicable provide the defendant an estimate of such expenses.

With regard to defendant's demands for medical authorizations it appears from defense counsel's reply affidavit that the claimant has supplied several authorizations but that authorizations remain outstanding for the following doctors, hospitals or other named entities: Dr. Thompson, Workers' Compensation Board permitting St. Paul Travelers to obtain the file, Canton Potsdam Hospital, claimant's cardiologist and the surgeon who performed claimant's OB/GYN surgeries. Although defense counsel requested authorizations for Bell Company and VESID by letter dated September 1, 2005, since the return date of the motion and cross-motion was July 20, 2005 the Court cannot order claimant to provide those authorizations without the necessity of a further motion. Authorizations for the remaining entities or individuals shall be provided to defense counsel within 20 days of receipt of this decision and order. Since there is no derivative claim against the defendant the Court denies the defendant's request set forth in the reply affidavit for authorizations for either a therapist or medical care provider regarding treatment and therapy for marital issues.

Claimant cross-moved for an order compelling the production of the names and addresses of claimant's co-workers as well as copies of the inspector's daily report, inspector's log book and the engineer's daily project diary. Defendant opposed the cross-motion arguing that claimant's demands were over broad, vague and burdensome.

Defendant shall provide claimant's attorney with an unredacted certified payroll for each pay period from June 1, 2002 to the date of claimant's accident within 20 days of receipt of this decision and order. Defendant shall within the same period provide copies of the inspector's daily reports, inspector's log books and the engineer's daily project diary from June 2002 to the date of claimant's accident to the extent not previously provided.

Finally, the Court finds no evidence of willful noncompliance on the part of claimant's attorney and therefore denies the relief requested pursuant to CPLR 3126. Since the previously ordered discovery deadline of August 15, 2005 was reached during the pendency of these motions and since each party has been directed to provide additional information to opposing counsel the Court hereby extends the discovery deadline to December 15, 2005.

September 26, 2005
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated June 29, 2005;
  2. Affidavit of Terese Burke Wolff sworn to June 29, 2005 with exhibits;
  3. Notice of cross-motion dated July 8, 2005;
  4. Affirmation of Michael Longstreet dated July 6, 2005 with exhibits;
  5. Affidavit of Terese Burke Wolff sworn to July 18, 2005 with exhibits.

[1].Motion practice relating to a bill of particulars is governed by CPLR 3042 rather than CPLR 3124 as cited by the defendant.