Senate Bill S4255

                                 BILL NUMBER:  S4255A

 TITLE OF BILL :  An act to amend the civil practice law and rules, in
relation to pleading a defense premised upon article 16 of such law
and rules and modifying the contents of a bill of particulars to
expand the categories of information that may be required

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of his Advisory
Committee on Civil Practice.

This measure would amend CPLR 3043(a) to further and improve the
statute's intended purposes: viz., amplifying the pleadings, limiting
the proof arid scope of inquiry at trial, and preventing surprise -
all while avoiding undue burdens upon any party. The measure would not
alter or limit the court's discretion to deny any one or more of the
particulars of CPLR 3043 or to grant other, further or different
particulars in a proper case. It will serve judicial economy by
curtailing motion practice regarding the nature and scope of claims
and will expedite discovery by requiring parties to more clearly set
forth theories of liability.

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)