New York State Court of Claims

New York State Court of Claims

TOR v. THE STATE OF NEW YORK, #2007-015-182, Claim No. 110874, Motion No. M-72871


Synopsis


Claimant's demand for bill of particulars seeking evidentiary material having no relation to matters on which the defendant bears the burden of proof was improper. Other demands were poorly drafted and insufficient to enable the defendant to form a proper response.

Case Information

UID:
2007-015-182
Claimant(s):
BUDHA TOR
Claimant short name:
TOR
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110874
Motion number(s):
M-72871
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Budha Tor, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Saul Aronson, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 23, 2007
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant pro se moves for an order pursuant to CPLR 3042 (c)(d) and 3126 striking the defendant's answer or, in the alternative, precluding the defendant from submitting evidence at trial as to those items for which a demand for a bill of particulars was served but not provided[1]. Claimant alleges that during the course of his admission to the hospital at Great Meadow Correctional Facility for the treatment of asthma, he was forcibly removed from the hospital by Correction Officers and beaten without just cause or provocation. He alleges that he sustained multiple injuries, including a fractured pelvis and a "broken hand" for which he did not receive timely medical treatment. Various causes of action are alleged, including assault, denial of necessary medical treatment, violations of the Federal and State Constitutions, conspiracy and wrongful confinement.

On July 5, 2005 claimant served the defendant with a demand for a bill of particulars to which the defendant responded on September 14, 2006. Of the twenty-three items demanded, the defendant responded to only item number "22" and objected to the remaining items demanded. In response to demands numbered "1" through "19" the defendant raised the objection that the demands were improper and clearly exceed the scope of a bill of particulars. With respect to items numbered "16", "17", "18", and "19" the defendant raised the additional objection that the information sought was privileged. The defendant objected to demands "20", "21" and "23" on the grounds that they are improper as to form, constitute compound questions, and are otherwise vague. Defendant also objected to demand number "23" on the basis that it is "incomprehensible" and seeks particulars for which the defendant does not bear the burden of proof.

"The purpose of a bill of particulars is to amplify the pleadings, limit the proof and prevent surprise at trial" (Harris v Ariel Transportation Corp., 37 AD3d 308, 309 [2007]; Neissel v Rensselaer Polytechnic Inst., 30 AD3d 881, 881-882 [2006]; Felock v Albany Med. Ctr. Hosp., 258 AD2d 772, 773 [1999]). Thus, a demand for a bill of particulars directed to a defendant with respect to a matter on which the defendant does not bear the burden of proof is inappropriate (Marsala v Weinraub, 208 AD2d 689 [1994]; cf. Ryan v Beavers, 170 AD2d 1045 [1991]). In addition, a bill of particulars need not set forth evidentiary material as such information is more appropriately obtained through other disclosure devices (Neissel v Rensselaer Polytechnic Inst., supra, 30 AD3d at 882; see e.g. CPLR 3120, 3123, 3131-3133). It has therefore been held that a demand for a bill of particulars is "palpably improper" where it requests material which is evidentiary in nature, privileged or irrelevant to the claim or defense at issue (State of New York v General Elec. Co., 173 AD2d 939, 941 [1991]).

Claimant's demands numbered "1" through "19" seek evidentiary material having no relation to a matter as to which the defendant bears the burden of proof. The information sought includes, for example, the identity of the physician who admitted the claimant for treatment and the date and time of the admission (demand number "1"), the purpose for which the claimant was admitted to the infirmary (demand number "2"), the nature of the prescribed treatment (demand number "3"), the course of treatment (demand number "4"), the diagnosis and prognosis (demand number "5"), etc. Since demands numbered "1" through "19" seek evidentiary material calculated to support the claim and not to amplify an affirmative defense on which the defendant bears the burden of proof they are palpably improper.

Demand number "20" requests that the defendant "[s]et forth specifically in what way will defendant claim that they shared no part of culpable conduct during the incident committed". Demand number "21" requests that the defendant "[s]et forth each and every particular act or omission by any person(s)/employee's of the defendant constituting assault/negligence of the incident claimed, to which the defendant will claim they sustained no fault in whole or in part". Defendant's objection to these demands, that they are improper as to form, is obviously well-founded. More importantly, they do not seek amplification of an affirmative defense as to which the defendant bears the burden of proof. As such, these demands are improper.

However, defendant's response to claimant's demand number "22" is inadequate. This demand requested amplification of the defendant's first affirmative defense in which the culpable conduct of the claimant is raised. Although the defendant states that claimant "failed to comply with prison protocols and procedures, including with respect to medical treatment", it failed to specify the particular protocols and procedures it claims were violated. In addition, the open-ended statement that "claimant's conduct was careless, reckless and negligent under the circumstances" fails to particularize in what respect the defendant claims the claimant was negligent.

Lastly, the defendant's objection to demand number "23" on the ground that it is improper as to form is well-founded. This demand is poorly drafted and insufficient to enable the defendant to frame a proper response.

Based on the foregoing, the claimant's motion is denied except to the extent that the defendant is ordered to provide a further bill of particulars with respect to item number "22" of the claimant's demand within thirty days of the date this order is filed.


April 23, 2007
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated January 22, 2007;
  2. Affidavit of Budha Tor sworn to January 22, 2007;
  3. Affidavit of Budha Tor sworn to January 22, 2007;
  4. Affirmation of Saul Aronson dated February 14, 2007 with exhibits;
  5. Claimant's demand for verified bill of particulars dated July 5, 2005;
  6. Defendant's verified bill of particulars dated September 14, 2006.

[1]. A motion for similar relief was previously made but denied on procedural grounds with leave to resubmit upon a proper showing.