By Marc H. Pillinger and Gabrielle L. Scibetta.
Discovery is a vital stage in the litigation process as it allows the parties to formally exchange information regarding the witnesses and evidence they intend to present, thereby eliminating surprises at the time of trial. This sharing of information facilitates a more efficient resolution of the case and encourages settlement since each party can now make more informed decisions on the strengths and weaknesses of their respective positions.
Nevertheless, an issue frequently arises where the plaintiff’s counsel will object to the defendant’s demand for a Bill of Particulars, arguing that it exceeds the scope of what is specified in CPLR Section 3043 and/or has the nature of an interrogatory and that the defendant has thus waived its right to an examination before trial (EBT). These objections are unfounded and ignore the broad scope of discovery permitted during the pre-trial phase of litigation.
The Appellate Division Second Judicial Department recently debunked this claim in Ethington v. H & M Hennes & Mauritz, L.P., awarding the defendant’s costs and attorney’s fees for the appeal. In this trip and fall case, the plaintiff alleged personal injuries resulting from a fall in a department store owned and operated by the defendant. Accordingly, the defendant requested in its demand for a bill of particulars whether the plaintiff ever informed anyone in the store about her fall, and the plaintiff objected.
In Ethington, the plaintiff argued that under CPLR 3043, a request which exceeds the statutorily defined scope of a demand for a bill of particulars is not a demand for a bill of particulars, regardless, it might be labeled. She further asserts that the demand is evidentiary in nature and thus constitutes an interrogatory under CPLR 3130. The court rejected these arguments, citing the case of Twiddy v. Stand. Marine Transport Services, Inc., which held that, while the information sought by the bill of particulars demand was undeniably information that would normally be obtained through discovery, there was no evidence that the party would suffer any prejudice by providing the requested information.
On appeal, the Appellate Division affirmed the lower court’s decision granting the defendant’s motion to compel the plaintiff to respond to a specified demand within the defendant’s demand for a bill of particulars. The court decided that, despite the fact that the subject demand is not enumerated in CPLR 3043(a), the lower court acted properly in directing the plaintiff to respond. It further ruled that the claim that the demand for a bill of particulars constituted interrogatories was whole without merit. The opinion concluded with the declaration that because the plaintiff had raised arguments on appeal that appeared to be “completely without merit in law and cannot be supported by a reasonable argument,” sanctions were warranted.
While a bill of particulars is not generally an evidence-producing device, its purpose is to amplify the pleadings, limit the proof and prevent surprise at trial. Thus, the rule has flexibility, as demonstrated in both the Ethington and Twiddy cases.
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Should you have any questions, please call our office at (914) 703-6300 or contact:
Marc H. Pillinger, Executive Partner
Jeffrey T. Miller, Executive Partner