New York State Court of Claims

New York State Court of Claims

AVINCOLA v. THE STATE OF NEW YORK, #2007-015-186, Claim No. 113049, Motion No. M-72870


Synopsis


Claimant's demand for a bill of particulars, which was served together with the claim, did not seek to amplify the defense on which the defendant bore the burden of proof. Instead it sought evidentiary material for which the device of a bill of particulars was not appropriate.

Case Information

UID:
2007-015-186
Claimant(s):
LUIS AVINCOLA
Claimant short name:
AVINCOLA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113049
Motion number(s):
M-72870
Cross-motion number(s):

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

Signature date:
May 10, 2007
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant moves pro se for an order pursuant to CPLR 3042 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. Claimant alleges that the defendant committed dental malpractice in the treatment of a tooth while he was an inmate at Great Meadow Correctional Facility. On November 28, 2006 the claimant filed his claim together with his demand for a verified bill of particulars. Issue was joined by the service of the defendant's answer on December 29, 2006. In its answer to the claim, the defendant in its twelfth affirmative defense objected to the inclusion of the claimant's demand for a bill of particulars as an exhibit to the filed claim.

Claimant's demand for a bill of particulars consists of 29 items most of which seek evidentiary material to support his claim. "The purpose of a bill of particulars is to amplify the pleadings, limit the proof and prevent surprise at trial" (Harris v Ariel Transp. Corp., 37 AD3d 308, 309 [2007] [internal quotation marks omitted]; Neissel v Rensselaer Polytechnic Inst., 30 AD3d 881, 881-882 [2006]; Felock v Albany Med. Ctr. Hosp., 258 AD2d 772, 773 [1999]). 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 demand for a bill of particulars was served before the defendant served its answer and is clearly not calculated to amplify an affirmative defense on which the defendant bears the burden of proof. Rather, most of the demands seek information calculated to support the claim. In addition, many of the demands seek evidentiary material which is more appropriately obtained through the use of interrogatories (see CPLR 3130- 3132) or a notice for discovery and production of documents (see CPLR 3120). Accordingly, claimant's motion to preclude is denied.


May 10, 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 17, 2007;
  2. Affidavit of Luis Avincola sworn to January 17, 2007;
  3. Memorandum of Law of Luis Avincola sworn to January 17, 2007;
  4. Affirmation of Saul Aronson dated February 28, 2007 with exhibits.