Claimant, an inmate proceeding pro se, filed this claim alleging medical
malpractice and/or medical negligence. Defendant State of New York (defendant)
answered and asserted various affirmative
Claimant now moves, pursuant to
CPLR 3124 and 3126, to compel defendant to provide a bill of particulars and for
sanctions. Defendant opposes the motion.
Claimant served a demand for bill of particulars on October 10, 2006 and states
that as of January 22, 2007, he had not received a response. Claimant also
requests sanctions in the amount of $5,000. Defendant contends that
claimant’s motion is procedurally flawed and should be denied on that
basis. Defendant also asserts that the bill of particulars has been served.
Claimant’s demand for a bill of particulars is not a discovery device
under CPLR article 31, but instead is an amplification of a pleading which is
governed by CPLR 3042. As defendant correctly notes, claimant may not compel
compliance with the demand or request sanctions under CPLR 3124 and 3126.
However, a motion to compel compliance with such a demand is authorized under
CPLR 3042 (c) and the Court will treat the instant motion as having been made
under that section. The Court, upon a finding of willful non-compliance, may
award relief “as is just, including such relief as is set forth in [CPLR
3126]” (CPLR 3042 [d]; see also Siegel, NY Prac § 241, at
406 [4th ed]).
Defendant served and filed a bill of particulars dated January 30, 2007 in
response to claimant's demand. Accordingly, to the extent that it seeks
compliance with the demand, claimant's motion filed on February 1, 2007 is
denied as moot. Claimant's request for sanctions remains, however. Claimant's
demand was served on October 10, 2006 and filed on October 16, 2006. Claimant
subsequently sent Assistant Attorney General (AAG) Roberto Barbosa a letter
dated December 8, 2006, referencing the demand and requesting that defendant
explain the delay in providing the bill of particulars.
Defendant does not deny that there was a delay in responding to the demand,
that the “response was prepared and served as promptly as feasible.”
Defendant further states that claimant sought information not properly contained
in a demand for a bill of particulars and that he also requested defendant to
expand on matters on which claimant has the burden of proof.
The allegedly improper demand did not extend the 30-day period in which
required to respond (CPLR 3042 [a]). Nonetheless, under these circumstances,
the Court does
not find defendant’s short delay to be willful. Additionally, the Court
does not discern that claimant has suffered any prejudice, particularly given
that he presumably has received the response. Accordingly, claimant's request
to impose sanctions on defendant is denied (Saratoga Harness Racing v Roemer,
290 AD2d 928, 929 ; Puccia v Farley, 261 AD2d 83, 85
Claimant’s Motion No. M-72903 is denied in its entirety.