Opinion
November 8, 1968
Rosenstock Turner for plaintiff.
Maynard, O'Connor Smith for third-party defendant.
Donohue, Bohl, Clayton Komar for defendant and third-party plaintiff.
Upon this motion by the defendant and third-party plaintiff for an order directing the plaintiff to serve a further bill of particulars, there remains for consideration by the court only a question regarding the manner in which the plaintiff has set forth his medical expenses to date, all other objections having been cured by the service of an amended bill of particulars prior to the return date of the motion. In the amended bill the plaintiff has set forth an itemization of medical expenses and has employed qualifying language indicating that the same reflect all medical billings received, but not all expenses incurred.
A reading of the papers submitted shows that the injuries sustained by the infant plaintiff in the accident giving rise to his cause of action are most severe and will require continuing medical care and treatment for the rest of his life. Under such circumstances, or indeed, even absent the same, it may well be impossible for a plaintiff to have exact knowledge of the amount of medical indebtedness incurred at the time of the drafting of his bill of particulars. In this regard it is to be noted that the courts have applied a somewhat practical approach to similar problems and have not required the plaintiff to do more than is reasonably possible. (See Cornell v. Mor-Nell Development Corp., 43 Misc.2d 1086; Thompson v. Shevlin, 43 Misc.2d 1078; King v. McCormick, 19 A.D.2d 874.)
Accordingly, while it is felt that the plaintiff should exercise diligent effort to ascertain all information properly to be supplied to the demanding party, he should not be prejudiced by his actual inability to obtain the same. Appropriate procedure would be to state that reasonable diligence was exercised in an attempt to obtain information but that the same could not be ascertained. When appropriate, as perhaps in the instant case, the bill served should contain a statement of estimate as to amount or the reasons why such estimate cannot be given, all of which should be coupled with the obligation to furnish further information when the same is available. Such procedure, it is felt, is appropriate and necessary and should not be unduly restrictive of the defendant's rights.
Accordingly, the motion of the defendant will be granted to the extent that the plaintiff will be required to serve a further bill of particulars in accordance with the aforesaid.