Defendants move to compel claimants to provide an adequate bill of particulars
and discovery responses, or, alternatively, for an order dismissing the claim
based on claimants’ failure to provide such particulars and responses.
The claim alleges that between 1983 and 2001 claimant Michael Brancato
(Brancato) was exposed to “silica dust, asbestos and concrete dust when
sand blasting and doing concrete work on various bridge and highway overpasses
around the state.” Brancato was diagnosed with lung cancer in February
The claim was filed on May 19, 2006 and defendants’ answer and demand for
a bill of particulars, together with various discovery demands, were filed on
June 23, 2006.
Brancato died from lung cancer on July 6, 2006. A party’s “death
divests the court of jurisdiction until a duly-appointed personal representative
is substituted for the deceased party” Paterno v CYC, LLC, 46 AD3d
788 [2d Dept 2007]); (Matter of Einstoss, 26 NY2d 181, 189 .
Consequently, all proceedings in the action were automatically stayed until an
order of substitution was made (Bova v Vinciguerra, 139 AD2d 797, 799 [3d
Claimant Fairuz Brancato was thereafter substituted as Administratrix of the
Estate of Michael Brancato and a stipulation changing the caption was filed on
November 5, 2007.
Claimants provided a bill of particulars and discovery responses after the
filing and service of the defendants’ motion.
Defendants, in their motion reply, argue that the bill of particulars fails to
set forth the specific dates and locations of the alleged exposure, instead
providing a list of the job sites and names of Brancato’s various
Claimants acknowledge in the bill of particulars that the “exact date and
time of the exposure is unknown” and suggest in their opposition papers
that Brancato’s death hindered preparation of the bill of particulars.
Claimants urge that the “specific nature of Mr. Brancato’s work must
be discovered through continued investigation and deposition testimony.”
CPLR 3126 provides the Court discretion to strike the pleading of a party who
“refuses to obey an order for disclosure or wilfully fails to disclose
information which the court finds ought to have been disclosed.” This
ultimate sanction is inappropriate, however, “absent a clear showing that
the failure to comply with discovery demands is willful or contumacious”
(Cambry v Lincoln Gardens, 50 AD3d 1081 [2d Dept 2008]). Defendants have
not made such a showing.
While defendants are entitled to reasonable particulars as to the time and
place of the alleged exposure, claimants are similarly entitled to a reasonable
period of time to conduct their own investigation, together with the use of
depositions and other disclosure devices, in order to obtain those particulars.
The parties shall complete depositions on or before January 30, 2009.
For all of the foregoing reasons, defendants’ motion is granted to the
extent that claimants are directed to file and serve an amended bill of
particulars and discovery responses on or before March 17, 2009.