Claimant's motion relating to his demand for a bill of particulars on affirmative defenses was granted to the limiting extent of compelling defendant to provide further particulars with respect to two demands.
|Claimant short name:||KOEHL|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Edward Koehl, Pro Se|
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Michael C. Rizzo, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||June 1, 2010|
|See also (multicaptioned case)|
Claimant, an inmate proceeding pro se, moves pursuant to CPLR 3042 (c) for an Order precluding the defendant from introducing evidence at trial of those matters for which a demand for a bill of particulars has been served but not provided.
Claimant seeks damages for wrongful confinement following two disciplinary hearings in which the Hearing Officer found him guilty of harassment in connection with the filing of certain grievances. Claimant was found guilty of the first charge of harassment and sentenced to 90 days in the Great Meadow Correctional Facility special housing unit (SHU), together with loss of privileges and good time credits. Claimant began serving his 90 day sentence on March 7, 2007. The finding of guilt was affirmed on administrative appeal and confirmed in a proceeding pursuant to article 78 (Matter of Koehl v Fischer, 52 AD3d 1070 ). The claim alleges the claimant was wrongfully deprived of his property, a change of clothes, medications, medical care and daily recreation from March 7, 2007 through March 21, 2007.
Claimant was found guilty of the second charge of harassment on March 8, 2007 and sentenced to 30 days keeplock, with loss of privileges, to be served at the completion of his prior sentence. It appears the second finding of harassment was at some point administratively reversed as the claim alleges it was expunged from claimant's record on July 13, 2007. Claimant alleges he was wrongfully denied access to proper medical and dental care, prescription medications and the right to practice his religion while housed in the Upstate Correctional Facility SHU from March 22, 2007 through June 8, 2007.
Defendant served an answer to the claim in which it raised as defenses the negligence of the claimant (first defense); negligence of someone other than the parties (second defense); assumption of risk (third defense); immunity based upon discretionary conduct of a judicial or quasi-judicial nature (fourth defense); and, to the extent the claim alleges civil rights violations, lack of subject matter jurisdiction (fifth defense).
Claimant served a demand for a bill of particulars relating to the defenses raised in defendant's answer to which the defendant responded on March 22, 2010. Unsatisfied with the responses, the claimant now moves to preclude.
The law is well settled that "the object of a bill of particulars is to amplify the pleadings, limit the proof and prevent surprise at trial" (Graham v Murphy, 135 AD2d 326, 328 ; Arroyo v Fourteen Estusia Corp., 194 AD2d 309 ). While a demand for the details of a claim or defense is proper, a demand for the evidentiary material in support of the claim or defense is not (Bassett v Bando Sangsa Co., 94 AD2d 358 , appeal dismissed 60 NY2d 962 ; Feraco v Long Is. Jewish-Hillside Med. Ctr., 97 AD2d 498 ; Ganin v Janow, 86 AD2d 857 ).
With respect to the defendant's first defense that the claimant's negligence or culpable conduct contributed to the injuries or damages alleged in the claim, claimant requested the following particulars:
"a) in full detail, any and all facts, laws governed by statutes, rules, regulations, doctrines, ordinances, etc., showing that claimant contributed to his serious medical conditions/injuries and the actions of defendant amounting to retaliation, abuse and torture;
b) the time, date, place of confinement, grievance numbers, misbehavior report dates, medical reports, xrays, medical exams, or any other contradictory evidence to support this defense."
The defendant responded that "[t]he acts and/or omissions which constitute the comparative negligence, contributory fault and/or assumption of risk of the claimant are as follows: in committing the acts alleged in the misbehavior reports at issue herein" (Claimant's Exhibit 2).
The defendant is required to provide a general statement of the acts or omissions which support the defense of claimant's contributory negligence or culpable conduct (CPLR 3043 [a] ). Where a claim or defense is based upon a violation of a statute, rule or regulation, specification of the particular statutory violation alleged is required (Sacks v Town of Thompson, 33 AD2d 627 ). Where a claim or defense is not so predicated, however, there are no particulars to provide and no response is required (Coughlin v Festin, 53 AD2d 800 ). To the extent the defendant intends to rely upon the claimant's alleged violation of a disciplinary rule in support of this defense, it must specify the rule it claims was violated. This was not done. A further bill of particulars is therefore required with respect to demand 1 (a).
Claimant's demand number 1 (b) improperly seeks evidentiary material and has little, if any, bearing on defendant's first affirmative defense. Defendant need not respond further.
Defendant has withdrawn the second defense asserted in its answer and need not respond to the claimant's demand number 2 relating thereto.
Claimant demanded the following with respect to the defendant's third defense alleging assumption of risk:
"a) in full detail, any and all laws governed by statutes, rules, ordinances, regulations doctrines, etc., showing that the doctrine of assumption of risk should be applied herein;
b) the time, date, place of confinement, grievance numbers, medical reports, xrays, exams, misbehavior reports, etc., showing that the doctrine of assumption of risk applies herein; and
c) contrary evidence to rebut the claimant's claims that defendant was responsible for the negligence and every other allegation asserted in the complaint."
In the event the defendant is relying upon the violation of a statute, rule, regulation or ordinance to support this defense, the defendant should specify same in response to demand 3 (a) or, otherwise, respond in the negative. Demands number 3 (b) and (c) do not seek the particulars of defendant's third defense alleging assumption of risk and no further response is necessary.
With respect to defendant's fourth defense alleging the State is immune from liability for discretionary judicial or quasi-judicial determinations, the claimant requested in his fourth demand the "evidence relied upon to substantiate the doctrine of immunity . . ." (Demand 4 [a] [b] and [c]). As set forth above, however, a demand for a bill of particulars is an improper procedural vehicle for obtaining evidence and the defendant need not provide any further response.
With respect to the defendant's fifth defense alleging the Court lacks subject matter jurisdiction over the claim to the extent it alleges civil rights violations, the claimant requested in his demand number 5 "the evidence, law, statute, ordinance, etc., relied upon to substantiate" the Court's alleged lack of jurisdiction. Once again, however, evidentiary material need not be provided in response to a demand for a bill of particulars. To the extent this demand seeks a particularization of the laws, statutes, rules and ordinances relied upon, the demand is improper as the defense is not based upon either statutory or regulatory authority.
Based on the foregoing, the claimant's motion is granted to the extent that the defendant is required to provide further responses to items 1 (a) and 3 (a) of the claimant's demand for a bill of particulars within thirty (30) days of the date this Decision and Order is filed and is otherwise denied.
June 1, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers: