Opinion
December 31, 1986
Appeal from the Supreme Court, Suffolk County (Abrams, J.).
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 A.D.2d 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 A.D.2d 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 A.D.2d 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 A.D.2d 882, citing Patterson v. Jewish Hosp. Med. Center, 94 Misc.2d 680, 682, affd 65 A.D.2d 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 A.D.2d 744). Accordingly, they were patently improper in a bill of particulars. Mangano, Kooper and Spatt, JJ., concur.
While the immediate issue involves the meaning of "palpably improper", what we decide will likely affect the role that CPLR 3042 (a) will play in future bill of particulars jurisprudence. The provision requires a party unwilling to provide particulars in response to a demand for a bill of particulars to move for a protective order within 10 days of receipt of the demand. The Legislature has thus imposed the burden of obtaining protection against improper demands upon the party from whom the information is sought. Absent motions for a protective order, such demands will be enforced unless they are so far beyond the pale of propriety that they are "palpably improper" (see, Coin v Lebenkoff, 10 A.D.2d 916; Tomasino v. Prudential Westchester Corp., 1 A.D.2d 781). I believe the instant plaintiff's failure to move for a protective order constituted a waiver of his right to object to the items in issue here.
The action seeks recovery for personal injuries allegedly suffered when the plaintiff's motorcycle ran into the defendant Jo Ann Savettiere's car at an intersection in the Town of Babylon. The essence of the plaintiff's claim against the town is that it failed to abide by proper engineering and highway safety standards by omitting to provide adequate traffic controls at the intersection and by placing at the wrong location the stop sign that was there. Paragraph 20 of the complaint, consisting of 16 separate allegations of negligence covering two pages, contends in part that the town was "negligent and careless in the placement of the stop sign", "in failing and neglecting to properly measure and design the traffic control to make same a reasonably safe intersection", "in failing to act as a reasonable prudent traffic safety engineer would act in designing and controlling the aforesaid intersection", and "in departing from the accepted standards of practice as practiced in highway safety engineers in placement of warning and other adequate controls so as to make passage over the intersection reasonably safe".
Seeking to ascertain the meaning of this barrage of generalities and attempting to discover the plaintiff's actual theory of negligence, the town's demand for a bill of particulars asked the plaintiff what other adequate controls he was referring to and where the stop sign in question should have been placed. The questions were simple and requested ultimate facts:
"17. State where plaintiff claims the stop sign should have been placed as alleged in paragraph 20 of plaintiff's complaint" and
"19. State what different or additional traffic controls plaintiff claims should have been in place at the intersection".
Answering both inquiries with the phrase "[p]alpably improper demand", the plaintiff shifted to the defendant town the burden of making the motion which would decide the validity of the unanswered items. The majority of my colleagues agree with the plaintiff that the requests were "[p]alpably improper" and refer to them as "evidentiary".
In these days the strong prevailing view is that justice is better served when the outcome of trials is based on meaningful preparation of cases rather than trial tactics or surprise (see, Hoenig v. Westphal, 52 N.Y.2d 605, 610). In furtherance of that concept, discovery rules have been liberalized to permit litigants to obtain pretrial knowledge of the nature and theory of the adverse claims and contentions. While a bill of particulars is, of course, a pleading and not a discovery device, the specification of claims which it provides is a prerequisite to meaningful discovery. If liberal discovery is indeed public policy, I have difficulty in understanding why a defendant faced with assertions that it failed to properly "measure and design" necessary traffic controls, failed to act as a "prudent traffic safety engineer would in designing and controlling" the intersection, and failed to provide "other adequate controls" at the intersection, is not entitled to know what traffic controls the plaintiff claims the defendant failed to provide, what it is that defendant should have done rather than what it did, and how its placement of the stop sign was "negligent and careless".
It is not new law that a defendant is entitled to know via a bill of particulars what the plaintiff intends to prove at trial, i.e., the theory of the plaintiff's case (see, D'Onofrio v Davis, 14 A.D.2d 960; Elman v. Ziegfeld, 200 App. Div. 494; Wood v Hoffman Co., 121 App. Div. 636; Dwyer v. Slattery, 118 App. Div. 345). Given the liberality with which bill of particulars issues are to be viewed (see, Paldino v. E.J. Korvettes, Inc., 65 A.D.2d 617; Solomon v. Travelers Fire Ins. Co., 5 A.D.2d 1017, rearg denied 6 A.D.2d 802), the town is entitled to know in advance the theoretical outlines underlying the numerous general claims of negligence which convey almost no specific information as to how the town failed in its obligations at the intersection.
Nevertheless, resolution of this appeal does not require us to determine whether or not the items in issue are improper. Even if such items are improper, as the Fourth Department held in Nuss v Pettibone Mercury Corp. ( 112 A.D.2d 744), upon which my colleagues of the majority rely, we only need decide whether they are "palpably improper", because mere impropriety was waived by plaintiff's failure to move for a protective order (see, Tafoya v. Becker, 61 A.D.2d 795; Panarelli v. State Farm Fire Cas. Co., 54 A.D.2d 961). Although reported decisions revealing the content of demands for bills of particulars that are "palpably improper" are relatively sparse, I conclude that a rather bright line can be drawn to distinguish the "improper" from the "palpably improper". A demand is "improper" when it seeks information that is inappropriate for a bill of particulars but not necessarily inappropriate for discovery by the use of discovery devices; a demand is "palpably improper", however, when the information it seeks is not discoverable at all. Held to be palpably improper have been unduly burdensome requests (see, Ritschl v. Village of Highland Falls, 92 A.D.2d 586; Peri v. State of New York, 54 A.D.2d 997; Helfant v. Rappoport, 14 A.D.2d 764) which would also be the subject of a protective order if sought by any discovery device (see, Senior v. Manufacturers Hanover Trust Co., 110 A.D.2d 833; Barouh Eaton Allen Corp. v. International Business Machs. Corp., 76 A.D.2d 873), demands for trade secrets (Kramer Locksmith Supply Co. v. Lawrence Locksmith Supply Co., 61 A.D.2d 809) which are not discoverable at all (see, Drake v. Herrman, 261 N.Y. 414; Cronin v. Pierce Stevens Chem. Corp., 36 A.D.2d 764), and demands for information that is irrelevant or that would constitute a conclusion of law (see, Morell v. Saratoga Harness Racing, 44 A.D.2d 884) which are not discoverable at all. Without having found a case that says it, I would venture that requests for privileged material are also "palpably improper", for that type of information generally is not available, no matter the discovery device employed (see, Cirale v. 80 Pine St. Corp., 35 N.Y.2d 113).
Turning to the contention that the plaintiff was not obligated to respond to the two instant items because they seek "evidentiary" information, it is true that demands for particulars as to how the plaintiff claims the allegedly negligent defendant should have acted have sometimes been held improper on the ground that they seek evidence (see, Nuss v Pettibone Mercury Corp., supra; McKenzie v. St. Elizabeth Hosp., 81 A.D.2d 1003). However, evidentiary information clearly is a proper subject of discovery (see, CPLR 3101 [a]; Allen v Crowell-Collier Pub. Co., 21 N.Y.2d 403), and this court has mandated a response to interrogatories seeking information as to how the plaintiff claims the defendant should have acted (see, Schlitter v. City of New York, 89 A.D.2d 979). If, as my colleagues believe, the items in current issue impermissibly seek evidentiary information, it was the plaintiff's obligation to move for a protective order if he was unwilling to furnish the particulars. Since he did not do so, he should be precluded from raising the issue of propriety now. I have no doubt that at some time prior to trial the plaintiff will have to tell the defendant town — as he will tell the jury — what other traffic controls should have been provided at the intersection and where the allegedly misplaced stop sign should have been placed. Absent that information, the defendant town can only speculate as to the theory the plaintiff will be propounding at the trial.
Accordingly, I disagree with my colleagues' determination relative to items Nos. 17 and 19 and vote to compel the plaintiff to provide a further bill of particulars which will answer them. I concur with the balance of the determination.