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

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Drafting NY Civil-Litigation Documents: Part 10—Bill of Particulars Gerald Lebovits Columbia Law School From the SelectedWorks of Hon. Gerald Lebovits October, 2011 Drafting NY Civil-Litigation Documents: Part 10—Bill of Particulars 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 New York Civil-Litigation Documents: Part X — Bill of Particulars bill of particulars isn’t techni- particulars from a defendant seeking or after the answer, but not before. cally a pleading, although the to amplify the defendant’s defenses Plaintiffs wanting a bill of particulars A provisions concerning the bill and counterclaims.11 A plaintiff may from defendants 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 pleadings. Nor is a bill of particu- claim.12 A third-party defendant may them with an answer to the complaint. 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 reply.”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. indictment.”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, courts 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 court, 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 negligence 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 trial.”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 damages 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 burden of proof.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.
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