Relates to pleading a defense premised upon CPLR article 16 and modifying the contents of a bill of particulars to expand the categories of information required

Rule 3043, governing bills of particulars in personal injury actions, has remained largely unchanged since its enactment effective September 1, 1964. Under the CPLR, interrogatories generally are not permitted in personal injury actions (CPLR 3130(1)). Unless a party waives the right to depose the adversary, a bill of particulars provides the only means for obtaining written responses from the opposing party. Ten years after its enactment the rule was amended by adding the provisions relating to an action brought pursuant to section 673(1) of the Insurance Law for personal injuries arising out of negligence in the use or operation of a motor vehicle in the State (L. 1974,c . 575). In 1979, the Legislature added CPLR 3042(b), which allows for service of a supplemental bill of particulars, without leave of the court and at least 30 days prior to trial, subject to specific limitations (L. 1979, c. 590).

At the request of our Advisory Committee, we now urge modification of these statutes to clarify the specificity required.

First, CPLR 3043(a)(2) would be amended to require litigants to identify the location of the occurrence with sufficient specificity that parties may evaluate the claims against them. We recommend deletion of the term "approximate" as being too vague a term, allowing overly broad description of the location of an accident, in favor of a specific identification of the location.

Second, CPLR 3042(a)(3) would be amended to delete the term "general" and insert the requirement that a "detailed" statement of the acts or omissions constituting the negligence claimed be stated by the parties to create more meaningful discovery and avoid surprise at the time of trial.

Third, CPLR 3042(a)(5) would be amended to require parties to state the identity of the recipient of actual notice when actual notice is claimed, and to specify the manner by which the notice was given. The wide array of modes of communication now available (e.g., in-person conversations, telephone or cell phone conversations, letter, email, text messages) makes equally important the identification of the means by which notice is alleged to have been given. This provision will amplify pleadings and greatly facilitate investigation of the claim of notice.

In addition, we also recommend adoption of the following five additional particulars which may be required:

1) A new CPLR 3043(a)(10) would require: "Any section 1602 provisions claimed to be applicable." This language would eliminate the frequent problem where a party may claim a CPLR 1602 exception to the Article 16 limitations of liability, but does not identify the specific subdivision. Defendants cannot effectively evaluate the claim and claimants are allowed the surprise at trial.

Since the claimant knows the specific subdivision, this amendment would remedy the problem with no inconvenience to any party.

2) A new CPLR 3043(a)(11) would add: "The name, address and file number of any collateral source of payment of special damages." This addition is related in content and spirit to subdivision (a)(9), which provides that a party may be required to particularize the "total amounts claimed as special damages for physicians' services and medical supplies; loss of earnings, with name and address of the employer; hospital expenses; nurses' services." While discovery is not permitted by means of a bill of particulars and the specifics of collateral source payments have not generally been allowed pursuant to a demand for a bill of particulars, requiring the mere identification of collateral source payors with respect to special damages does not unduly burden the party providing particulars.

3) A new CPLR 3043(a)(12) as follows: "Any law, statute, rule, regulation, ordinance, or industrial or professional standard claimed to have been violated." This amendment would give parties notice of the claims against them and prevent improper surprise at trial. Further, it would codify existing law holding that in tort actions where a statutory violation is being asserted, it is incumbent upon the suing party to identify the particular statute, law, ordinance, rule or regulation claimed to have been violated (see Liga v Long Island Rail Rood, 129 AD2d 566, 514 NYS2d 61 (2d Dept 1987); Johnson v Notional Railroad Passenger Corp., 83 AD2d 916, 442 NYS2d 526 (1' Dept 1981)).

4) A new CPLR 3043(a)(13) would require: "If a defective condition is claimed, a description of the alleged condition and the date and time the alleged condition arose." Currently section 3043 does not expressly authorize a party to obtain a description, where constructive notice is claimed, of the alleged condition and the date and time the alleged condition arose, despite the fact that subdivisions (a)(4) and (a)(5) require particulars on whether the plaintiff claims actual or constructive notice and further details regarding actual notice, respectively.

5) CPLR 3043(a)(14) would require a party to: "Identify the principal address of the plaintiff." Given that the plaintiff is a party to the action and identified in the pleadings, and given the insignificant burden of providing the information, this amendment is recommended to ensure that there is no confusion as to the actual identity of the plaintiff.

These new requirements will serve the statue's intended purpose of amplifying the pleadings, limiting the proof and scope of inquiry at trial, and preventing surprise, without imposing any undue burden on the parties.

This measure would have no fiscal impact on the State. It would take effect immediately and apply to bills of particulars where the demand therefor was served on or after such effective date.

2007-08 Legislative History: OCA 2007-5 Senate 3561 (Sen. Volker) (Codes)