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Home , Answer (law), Bill of particulars, Cause of action, Plaintiff, Pleading

Columbia School

From the SelectedWorks of Hon. Gerald Lebovits

October, 2011

Drafting NY Civil-Litigation Documents: Part 10— Gerald Lebovits

Available at: https://works.bepress.com/gerald_lebovits/200/ OCTOBER 2011 VOL. 83 | NO. 8 JournalNEW YORK STATE BAR ASSOCIATION

Also in this Issue Planning and the Case Law From Transsexual Client Finding the Mortgagee the Crypt Landlord-Tenant Law 101 The Law of Halloween by Daniel B. Moar THE LEGAL WRITER BY GERALD LEBOVITS

Drafting Civil-Litigation Documents: Part X — Bill of Particulars

bill of particulars isn’t techni- particulars from a seeking or after the , but not before. cally a , although the to amplify the defendant’s defenses Plaintiffs wanting a bill of particulars A provisions concerning the bill and .11 A may from about the defendants’ of particulars are located in Article 30 also demand a bill of particulars defenses may serve a demand any of the CPLR, which cover remedies from a co-defendant about a cross- time after the defendants have served and . Nor is a bill of particu- claim.12 A third-party defendant may them with an answer to the . lars a disclosure device. A bill of par- demand a bill of particulars not only Plaintiffs wanting a bill of particulars ticulars, instead, is “an amplification from a defendant who impleaded a from defendants about defendants’ of a pleading.”1 It’s an “expansion” third-party defendant but also from a counterclaims may serve a demand of a pleading.2 One party will make a plaintiff.13 “with or after the .”17 demand for a bill of particulars from Defendants use bills of particulars You have 30 days to respond to a another party; the response to that in criminal cases to “amplify an demand for a bill of particulars. Once demand is called a bill of particulars. .”14 Parties also use bills you’ve received a demand, you must A party demanding a bill of particu- of particulars in civil cases such as determine what information you’re lars seeks to amplify — or particular- personal-injury actions. willing to provide with particularity ize — the claims, defenses, or both At one time the New York legislature and what information you’re of an adversary’s pleading. Although wanted to abolish the bill of particulars objecting to in the demand. Answer it’s not pleading, may look to in the CPLR, but it never did.15 The all the items in the demand, even a bill when they consider whether a bill of particulars has been abolished the objectionable ones. If you object, party has sufficiently pleaded a cause in federal , however. It’s up to you must give your reasons “with of action.3 you to decide whether you’ll demand reasonable particularity.”18 Don’t delay A bill of particulars isn’t meant a bill of particulars in your New York or withhold your bill of particulars for one party to obtain evidence.4 It’s State litigation practice. If you’re given because you object to something. If not meant for one party to inspect no choice and must respond and write you fail to respond to the demand for documents or physical evidence5 from a bill of particulars, this column will a bill of particulars, you’ll be subject to another party. A bill of particulars isn’t explain some of the nuances of a bill of penalties, as discussed below. meant for a party to find a witness’s particulars. If a pleading is verified, the bill of name and address6 or to locate particulars must also be verified.19 An collateral sources of payment.7 A bill of Some Particulars About Bills of exception exists in cases: particulars is designed to “offer a more Particulars Even if the pleading isn’t verified, the expansive statement of the pleader’s CPLR 3041, 3042, 3043, and 3044 bill of particulars must be verified.20 contentions rather than the evidentiary provide information about bills of An agent or the party’s attorney may basis on which they rest.”8 It’s meant to particulars. verify the bill of particulars.21 Sample limit the issues and particularize each The demand for a bill of particulars verification:22 9 party’s claims. A bill of particulars is and the bill of particulars will be specific I, [insert the plaintiff’s name], also intended to “limit the proof and to your case. The bill will particularize am the plaintiff in the above- prevent surprise at .”10 what the “pleading pleads.”16 referenced action. I have read the Under CPLR 3041, any party to If you’re seeking a bill of particulars, above bill of particulars and know an action (or proceeding) may make a written demand. In your its contents. The contents are true demand a bill of particulars. For “Demand for Bill of Particulars,” of my own knowledge, except as example, a defendant may demand state the items about which you’re to those matters stated as being a bill of particulars from a plaintiff. seeking amplification. Defendants alleged on information and belief A plaintiff may demand a bill of serve the demand with the answer Continued on Page 56

64 | October 2011 | NYSBA Journal The Legal Writer Continued from Page 64 If you need more time to prepare special and disabilities.” You and, as to those matters, I believe your bill of particulars, ask for more may serve your supplemental bill even them to be true. time from the party who sent you the after the defendant filed the note of I declare under penalty of perjury written demand. If that party agrees issue. Serve the supplemental bill of that the foregoing is true and to give you more time, prepare a particulars at least 30 days before trial; correct. stipulation listing the time frame. If don’t add new grounds or theories to Dated: [insert date]. that party refuses to give you more the bill. time, move the court to extend your If you’re amending or supplement- If the party demanding a bill of time to prepare your bill of particulars. ing your bill of particulars, you don’t particulars from you objects to your If you don’t sufficiently know the need to rewrite the entire bill or to bill or if you’ve failed to respond details to your case to prepare a bill of point out what’s different from the with a bill, that party should move particulars, prepare a bill as completely original bill. under CPLR 3042(c) to compel you to as you can given your current If a plaintiff serves an amended comply. That party may seek penalties knowledge. If a party is demanding complaint, a defendant may request a if you’ve willfully failed to comply. information you don’t know, state in new bill of particulars. Likewise, if a Penalties exist under CPLR 3042(d) your bill of particulars that you don’t defendant serves an amended answer and (e) for either party’s improper have that information. Answer the with additional affirmative defenses, demand and state what information is a plaintiff may request a new bill of missing and when you expect to obtain particulars. Your demand for a bill the information during disclosure. Including at the end of the bill of particulars shouldn’t Once you’ve obtained the information, of particulars a statement that you be voluminous, serve an amended or supplemental bill reserve your right to modify or amend of particulars. For example, you might the bill of particulars has no effect. repetitious, or unrelated need to conduct an examination before Including this language won’t give to the case. trial (EBT) before you will know certain you time to modify or amend your bill information to answer the demand. If beyond what the statute provides. that’s the situation, state that in your Don’t go to trial on an outdated behavior. Under CPLR 3042(c), bill of particulars. bill of particulars. A court may the court isn’t limited to issuing a admit evidence at trial based on the conditional preclusion order; the court Amending and Supplementing a matters you’ve set forth in your bill may sanction you if the court finds Bill of Particulars of particulars. If you’ve failed to that your behavior has been willful. If Under CPLR 3042(b), you’re allowed particularize your bill of particulars, you don’t comply with the conditions to amend your bill of particulars one a court may preclude you from the court delineates in its order, time as of right (no leave of court introducing evidence at trial.26 you’ll be precluded from introducing is needed) if you amend before the documentary or testimonial evidence defendant files a note of issue.25 If the Writing the Demand for a Bill of at trial. A conditional preclusion defendant has already filed a note of Particulars order gives you a second chance issue, you’ll need leave of court to • Confine your demand for a bill of to comply before a court precludes change the bill of particulars. Or you particulars to the issues on which your you.23 A conditional preclusion order may get the other side to agree and adversary has the .27 is common in disclosure practice. But stipulate that you may amend the bill. • Your demand for a bill of you might not always get a second If you’ve already amended your bill particulars shouldn’t be voluminous, chance. Under CPLR 3042(d), a court of particulars and need to amend it repetitious, or unrelated to the case.28 A may also grant relief under CPLR 3126. again, you’ll need leave of court or court won’t cull through your demand Under CPLR 3126, a court may order the other side’s permission to amend. to preserve the proper demands from any remedy it finds “just.” A court To determine whether to allow you the improper demands. A court might may strike all or part of your pleading to amend, a court will use the same reject your demand in its entirety if you’ve failed to comply with the standard under CPLR 3025(b), which if your demands are improper or court’s order. A court may stay the deals with when you’d amend and burdensome.29 action or proceeding until you comply supplement your pleadings by leave • Avoid boilerplate demands. Each with the court order. The most severe of court case has different facts and issues. remedy is that a court may dismiss In a personal-injury case, you may Tailor your demands to each case. the action or enter a default serve a supplemental bill of particulars • In personal-injury actions, the against a disobeying party.24 as of right under CPLR 3043(b), but only items you may demand are codified “with respect to claims of continuing under CPLR 3043(a). The items include

56 | October 2011 | NYSBA Journal (1) the date and time of the occur- the person of the defendant as bill. In your bill of particulars, you rence; (2) the approximate location of stated in your _____ [number] can’t add or substitute a new theory or occurrence; (3) the acts or omissions affirmative . from what you pleaded constituting the negligence claimed; 6. State with particularly the acts in the complaint. (4) whether actual or constructive or omissions that constitute the • In a negligence case, you must is claimed; (5) if actual notice is plaintiff’s culpable conduct that specify the “acts of negligence as to claimed, a statement of when and to you claim caused, in whole or in each defendant.”38 whom notice was given; (6) a statement part, the plaintiff’s injuries as you • You can’t respond to an inquiry of injuries and a description of those stated in your _____ [number] in a demand by referring to portions of injuries claimed to be permanent;30 . your complaint or by referring to other (7) the length of time confined to bed 7. State with particularity the facts portions of your bill of particulars.39 and to house; (8) the length of time that support your _____ [number] • Avoid boilerplate. If one or more incapacitated from employment; and affirmative defense in which you defendants demand a bill of particulars (9) the total amount claimed as spe- state that the plaintiff failed to use from you, don’t serve identical bill of cial damages for physicians’ services an available seat belt and other particulars on them. They’re different and medical supplies, loss of earnings, safety devices in the plaintiff’s defendants making different demands. name and address of employer, hospi- vehicle. • No need exists to disclose tal expenses, and nurses’ services. • At the end of your demand, information in response to a demand • CPLR 3041 defines a bill of practitioners use a variation of the for a bill of particulars relating to particulars to include “items of an following language:34 general damages.40 account.” If a party has pleaded that PLEASE TAKE FURTHER an account exists, the adverse party is NOTICE that if you fail to serve entitled to demand a copy of the items a bill of particulars as demanded, You can’t use a bill of of the account. the undersigned will move for a particulars to correct a • You may demand particulars court order precluding you from defective pleading. about items claimed as “special” giving any evidence at the trial of damages, but only if special damages this action concerning the items is sought in the complaint.31 No need sought in the demand for the bill • If an inquiry in a demand is exists to plead general damages. of particulars. overly broad or repetitious, object • Immediately after the caption to on those grounds. If an inquiry in your case, the language that many Writing the Bill of Particulars a demand seeks information that’s practitioners use in a demand for a bill • Confine your bill of particulars privileged, object on that ground. If of particulars is the following:32 to those facts you have the burden of you have another substantive reason PLEASE TAKE NOTICE that the proving. for objecting, state your objection with plaintiff demands that you serve • Give the particulars to your claim particularity.41 on this office, within 30 days from even if the opposing party knows the • At the beginning of their bill of the date of service of this demand, a particulars.35 particulars, practitioners include a bill of particulars with respect to the • Answer each inquiry in the variation of the following language:42 following matters: demand separately. The plaintiff, by and through • Number the items for which you • Referring to a document instead the plaintiff’s attorney, [name of seek particularization. Example: of responding to an inquiry is plaintiff’s attorney], sets forth the 1. State the date and time of the insufficient.36 following verified bill of particulars occurrence. • Responding to an inquiry with in response to the defendant’s 2. State the location of the accident phrases like “among other things” demand that the defendant served in detail. and “among others” is improper.37 on the plaintiff on [date]. 3. State the direction in which each This type of vague response defeats This verified bill of particulars is vehicle was traveling. the purpose of a bill of particulars. submitted under CPLR 3041. 4. State what part of each respective The purpose of a bill of particulars is vehicle came into contact with the to amplify and particularize, not to • Because each case is different, other. generalize. your amplification of the pleading will • If you’re seeking to amplify an • You can’t use a bill of particulars be different. affirmative defense, here are some to correct a defective pleading. For Assume that the defendant crashed examples:33 example, if you’ve forgotten an his car into the plaintiff, who was 5. State with particularity the reasons essential element of a claim in your riding a motor scooter at the time of this Court has no over complaint, you can’t include it in your the crash. Assume that the defendant

NYSBA Journal | October 2011 | 57 injured the plaintiff. Although it’s an (d) hospital expenses: (holding plaintiff entitled to bill of particulars for incomplete bill of particulars, here’s [dollar amount]. co-defendant’s cross-claim of indemnification)). an example if you’re the plaintiff Except in matrimonial actions, you 13. Id. (citing Shapiro v. Town of Thompson, Sullivan County, New York, 9 A.D.2d 995, 995, 194 N.Y.S.2d responding to a demand for a bill of can’t serve both a demand for a bill 748, 748 (3d Dep’t 1959) (holding that plaintiff particulars:43 of particulars and on had to furnish bill of particulars to third-party 1. The crash occurred on [date] at the same party.44 Interrogatories are defendant). approximately [time]. a useful tool in disclosure. The next 14. Barr et al., supra note 5, at § 29:01, at 29-9. 2. The crash occurred at [location], Legal Writer column will discuss inter- 15. Siegel, supra note 1, at § 238, at 401. in [name of county], [name of rogatories, including the differences 16. Id. at § 238, at 402. state]. between bills of particulars and inter- 17. Id. at § 239, at 403. 3. The weather conditions at the rogatories. ■ 18. CPLR 3042(a). time of the crash were [indicate 19. CPLR 3044. CPLR 3020(d) governs who may weather conditions]. verify. 20. CPLR 3044. 4. The defendant violated the GERALD LEBOVITS, a Criminal Court judge in following statutes, rules, Manhattan, teaches part time at Columbia, 21. CPLR 3020(d)(3). regulations, and ordinances, Forham, and St. John’s law schools. He 22. 4 Am. Jur. Pl. & Pr. Forms § 142. and the violations contributed thanks court attorney Alexandra Standish for 23. For more on conditional preclusion orders, see to the crash: [set forth statutes, researching this column. Judge Lebovits’s email Gibbs v. St. Barnabus Hosp., 16 N.Y.3d 74, 82–83, 942 address is [email protected]. N.E.2d 277, 281–82, 917 N.Y.S.2d 68, 72–73 (2010) rules, regulations and ordinances (enforcing conditional preclusion order on plaintiff violated]. who failed to serve timely supplemental bill of 5. The defendant’s following particulars and failed to submit expert medical opinion evidence demonstrating meritorious basis acts and omissions constituted 1. David D. Siegel, New York Practice § 238, at for his medical malpractice claim); Wilson v. Galicia negligence and directly caused 400 (4th ed. 2005). Contracting & Restoration Corp., 10 N.Y.3d 827, 830, the crash: [set forth acts and 2. Id. at § 238, at 401; J. Joseph Wilder & Laura 890 N.E.2d 179, 181, 860 N.Y.S.2d 417, 419 (2008) A. Linneball, Pleadings and Motions Directed to Their (holding that defendant forfeited defense omissions]. Faults, How to Commence a Civil , N.Y. St. when defendant ignored disclosure orders); 6. The nature and extent of the B. Ass’n 17, 97 (Cont’g Legal Educ. Prog., May 25, Lauer v. City of Buffalo, 53 A.D.3d 213, 216–17, 862 plaintiff’s injuries are as follows: 2011). N.Y.S.2d 675, 678 (4th Dep’t 2008) (finding that defaulter had excuse for failing to comply with 3. Nader v. General Motors Corp., 25 N.Y.2d [describe injuries]. conditional order). 7. The plaintiff claims that the 560, 565, 255 N.E.2d 765, 767, 307 N.Y.S.2d 647, 650 (1970) (“[T]hose particulars [in the bill of 24. CPLR 3126(3); Congleton v. United Health Servs. following injuries are permanent: particulars] are, of course, to be taken into account Hosps., 67 A.D.3d 1148, 1151, 889 N.Y.S.2d 701, 704 [describe permanent injuries]. in considering the sufficiency of the challenged (3d Dep’t 2009) (dismissing action after plaintiff causes of action.”). failed to comply with court’s conditional order; 8. The name and address of each court determined that plaintiff’s conduct was 4. Wilder and Linneball, however, cite some cases doctor who examined or treated willful, and plaintiff’s counsel did not offer reason in which courts have determined that demands for not complying with court order); Rodriguez v. plaintiff in connection with the that sought evidence were appropriate. Wilder & Zeichner, 50 A.D.3d 999, 1000, 854 N.Y.S. 898, 899 Linneball, supra note 2, at 109. injuries is set forth below: [set (2d Dep’t 2008) (affirming lower court’s dismissal forth names and addresses]. 5. If the responding party isn’t prejudiced, a of complaint because plaintiff failed to serve a 9. The name and address of each court might allow a party to disclose evidentiary further bill of particulars within the time limit set material in a bill of particulars to prevent delays in the court’s conditional order of preclusion). hospital, clinic, institution, or medical in disclosure. 1 Michael Barr, Myriam J. Altman, 25. This rule applies in Supreme and County Burton N. Lipshie & Sharon S. Gerstman, New facility where the plaintiff was courts, not the lower courts. In the lower courts, a York Civil Practice Before Trial § 29:30, at 29-11 examined or treated is set forth below: notice of trial is required, not a note of issue. Barr (2006; Dec. 2009 Supp.). [set forth names and addresses]. et al., supra note 5, at § 29:70, at 29-13. 6. Although demanding the names of witnesses 26. Wilder & Linneball, supra note 2, at 125 (citing 10. On [date], the plaintiff was is impermissible, one court allowed the names of Acunto v. Conklin, 260 A.D.787 789, 687 N.Y.S.2d witnesses to be identified because the witnesses employed by [employer] at 779, 781 (3d Dep’t 1999) (finding that arthritis was had heard a slanderous comment. Wilder & [address], [name of city], [name not a condition which “flow[ed] from the specific Linneball, supra note 2, at 113 (citing Bounds v. injuries set forth” in the bill of particulars and of county], [name of state]. Mutual of Omaha Ins. Co., 37 A.D.2d 1008, 1009, 325 precluded plaintiff from introducing evidence N.Y.S.2d 573 (3d Dep’t 1971)). 11. The plaintiff’s claimed lost of condition at trial because plaintiff had failed earnings total [dollar amount]. 7. Id. at 97, 109. to amend his bill); D’Angelo v. Bryl, 205 A.D.2d 935, 936–37, 613 N.Y.S.2d 757, 758 (3d Dep’t 1994) 12. The plaintiff claims the 8. Siegel, supra note 1, at § 238, at 401. (precluding medical expert from testifying about following damages for 9. Wilder & Linneball, supra note 2, at 108. plaintiff’s bulging disc because the injury differed (a) physicians’ services: 10. Siegel, supra note 1, at § 238, at 400. from the injuries specified in bill of particulars)). [dollar amount]; 11. Michael P. Graff, The Art of Pleading — New 27. Wilder & Linneball, supra note 2, at 100; Graff, (b) medical expenses: York State Courts, N.Y. City Bar Ctr. for CLE 1, 32 supra note 11, at 32. [dollar amount]; (Dec. 8, 2008). 28. Wilder & Linneball, , supra note 2, at 112 (c) nurses’ expenses: 12. Wilder & Linneball, supra note 2, at 98 (citing Pucik v. Cornell Univ., 4 A.D.3d 686, 687, (citing Smith v. King, 91 Misc. 2d 151, 152, 397 771 N.Y.S.2d 921, 921–22 (3d Dep’t 2004)); Bardi v. [dollar amount]; and N.Y.S.2d 523, 524 (Sup. Ct. Albany County 1977) Mosher, 197 A.D.2d 797, 602 N.Y.S.2d 974, 975 (2d

58 | October 2011 | NYSBA Journal Dep’t 1993) (vacating a 40-page demand that had complained of, and follow it as a natural and particulars depends upon what the aggrieved 161 paragraphs). proximate consequence by reason of the particular party claims the facts are, and not upon the circumstances of the case.” 16 Lee S. Kreindler, adversary’s knowledge thereof, nor upon the 29. Wilder & Linneball, supra note 2, at 113. Blanca I. Rodriguez, David Beekman & David C. actual facts.’”); Draper v. Zamiara, 126 A.D.2d 30. See CPLR 3043(a)(6) about additional Cook, New York Practice Series — New York Law 941, 941, 511 N.Y.S.2d 986, 987 (4th Dep’t 1987) information you may seek when plaintiffs are of § 21:5 (2011). (“Plaintiff is not excused from answering the involved in motor-vehicle accidents, when demands because of his claim that defendants 32. Adapted from Barr et al., supra note 5, plaintiffs suffer serious injuries, and when have full knowledge of the facts.”). CD-ROM, Forms, Chap. 29, Bill of Particulars plaintiffs suffer economic loss greater than basic & Interrogatories, 29-10: Demand for Bill of 36. Wilder & Linneball, supra note 2, at 116. economic loss. Particulars. 37. Id. at 115. 31. Wilder & Linneball, supra note 2, at 113 (citing 33. Id. CPLR 3043). Compensatory damages in cases 38. Id. come in two forms: general and special damages. 34. Id. 39. Id. at 116. General damages in tort cases are “those that the 35. Lonesome by Coleman v. Angel Guardian Home, law implies or presumes to have occurred from 40. Id. at 101. 146 A.D.2d 503, 504, 536 N.Y.S.2d 776, 777–78 (1st the wrong complained of because they necessarily Dep’t 1989) (“[P]laintiffs’ proffered explanation 41. Barr et al., supra note 5, at § 29:60, at 29-12. result from the injury.” Special damages, however, for the delay, that much of the information sought 42. Adapted from 4 Am. Jur. Pl. & Pr. Forms § 142. “are those that are peculiar to the injured party’s by the bill of particulars was already within the circumstances and condition They are the 43. Id. knowledge and exclusive control of defendants, actual, but not the necessary, result of the injury is unavailing, since ‘[t]he granting of a bill of 44. Barr et al., supra note 5, at § 29:03, at 29-9.

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