Bouton v. County of Suffolk , 509 N.Y.S.2d 846 ( 1986 )

— In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Abrams, J.), dated June 11, 1985, which granted the defendant Town of Babylon’s motion to compel the plaintiff to serve a further bill of particulars in response to items Nos. 17 through 20 of its demand.

Justice Kooper has been substituted for the late Justice Gibbons (see, 22 NYCRR 670.2 [c]).

Ordered that the order is modified, by deleting the provisions thereof which directed the plaintiff to respond to items Nos. 17, 19 and 20 of the town’s demand and by substituting therefor a provision denying those branches of the motion, with leave to the plaintiff to serve a supplemental bill of particulars with respect to item No. 20, within 30 days after the completion of pretrial discovery. As so modified, the order is affirmed. The plaintiff’s time to respond to item No. 18 is extended until 30 days after service upon him of a copy of this decision and order, with notice of entry.

Items Nos. 17 and 19 in the defendant town’s demand sought matters which are evidentiary in nature requiring expert opinion testimony and, thus, are outside the scope of a bill of particulars (cf. Patterson v Jewish Hosp. & Med. Center, 94 Misc 2d 680, 683, affd 65 AD2d 553). Furthermore, although "a plaintiff is required to specify the statutes, ordinances and laws claimed to have been violated, plaintiff made no such claim in [his] complaint. [He] was therefore not required to respond to Item No. [20]. If such violations are disclosed after pretrial discovery”, the plaintiff will have 30 days to serve a supplemental bill of particulars (see, Sobel v Midchester Jewish Center, 52 AD2d 944).

We cannot agree with our dissenting colleague’s position. A bill of particulars is not a form of disclosure. "Unlike the disclosure devices authorized in CPLR article 31, a bill of particulars is of limited scope and may not be used to obtain evidentiary material” (Ginsberg v Ginsberg, 104 AD2d 482, 484). The purpose of a bill of particulars is " 'to amplify the pleadings, limit the proof and prevent surprise at the trial’ ” (Medaris v Vosburgh, 93 AD2d 882, citing Patterson v Jewish Hosp. & Med. Center, 94 Misc 2d 680, 682, affd 65 AD2d 553, supra). We are aware that CPLR 3042 (a) requires a motion to vacate or modify improper demands. "The dilemma is that if a plaintiff fails to move pursuant to said section he may find himself required to answer improper demands or be subjected to motions to preclude. It may be for this tactical reason and not for lack of knowledge that improper demands are made for particularization * * * Therefore, if a demand for particulars is patently improper in the first instance, no penalty should ever attach for failure to respond” (Patterson v Jewish Hosp. & Med. Center, supra, p 684). The demands here rejected called for "alternative” designs which plaintiff claims should have been used and call for "expert testimony and are evidentiary” (see, Nuss v Pettibone Mercury Corp., 112 AD2d 744). Accordingly, they were patently improper in a bill of particulars. Mangano, Hooper and Spatt, JJ., concur.