Opinion
Index 2018-0594
09-12-2019
HARODD STEVENSON, Plaintiff, v. JAMES F. JOSEPH, JAMES F. JOSEPH REVOCABLE TRUST, HOTTENROTH & JOSEPH ARCHITECTS, and JAMES F. JOSEPH JR., Individually, and as Trustee of the JAMES T. JOSEPH REVOCABLE TRUST, Defendants.
MICHAEL CONWAY, ESQ. Harris, Conway & Donovan, PLLC 50 State Street, 2nd Floor Albany, NY 12207 Attorney for Plaintiff JESSICA ROUNDS, ESQ. Burke, Scolamiero & Hurd LLP Attorney for Defendant Hottenroth & Joseph Architects
Unpublished Opinion
At a Term of the Supreme Court, held in and for the County of Greene, in the Village of Catskill, New York, on the 12 day of September, 2019.
Dept 1995] [Where plaintiff claims to lack "present knowledge of relevant information requested by the demand, they should be as responsive as possible, stating their inability to respond if such is the case, and upon acquiring the information after disclosure, serving a supplemental bill of particulars"]).
MICHAEL CONWAY, ESQ. Harris, Conway & Donovan, PLLC 50 State Street, 2nd Floor Albany, NY 12207 Attorney for Plaintiff
JESSICA ROUNDS, ESQ. Burke, Scolamiero & Hurd LLP Attorney for Defendant Hottenroth & Joseph Architects
PRESENT: HON. RAYMOND J. ELLIOTT, III Justice
DECISION AND ORDER
RAYMOND J. ELLIOTT, III SUPREME COURT JUSTICE
Before the Court is a motion to compel/preclude made by Defendant Hottenroth & Joseph Architects (hereinafter Defendant). Defendant asserts that Plaintiffs Bill of Particulars is unnecessarily vague and fails to provide sufficient information with which it may form a defense. Specifically, Defendant asserts that Plaintiff improperly claimed to be both temporarily and permanently disabled as well as partially and fully disabled, did not sufficiently particularize the alleged statutory violations, and did not sufficiently allege the details of how Plaintiff was injured.
Plaintiff, through counsel, opposes the motion, contending that GPLR 3043 sets forth the specific requirements for a bill of particulars in a personal injury case and that the 14-page Bill of Particulars that was provided fulfills these requirements. Additionally, Plaintiffs Counsel notes that he is "likely to Supplement the Bill of Particulars at least once prior to Trial (as we gain information and as the injuries progress)." Plaintiff further asserts he will also provide additional information regarding permanency as part of expert disclosures.
At a conference held on September 10, 2019, this Court heard from both parties regarding their assertions related to this motion.
"The purpose of a bill of particulars is to amplify the pleadings, limit the proof and prevent surprise at trial" (Myers v Community Gen. Hosp. of Sullivan County, 51 A.D.3d 1359, 1360 [3d Dept 2008] [internal quotation marks, brackets and citations omitted]; accord Stoddard v New York Oncology Hematology, P.C., 172 A.D.3d 1504, 1505-1506 [3d Dept 2019]). "[E]ach defendant is entitled to a bill of particulars that narrows the issues sufficiently to permit a reasonable defense" (Heyward v Ellenville Community Hosp., 215 A.D.2d 967, 968 [3d Dept 1995], accord Hayes v Kearney, 237 A.D.2d 769, 770 [3d Dept 1997] [internal quotation marks and citation omitted]). Likewise, "a bill of particulars must specify... the statutes, regulations or ordinances alleged to have been violated by each defendant" (Neissel v Rensselaer Polytechnic Inst., 30 A.D.3d 881, 882 [3d Dept 2006]). However, "[a] bill of particulars need not set forth matter that is evidentiary in nature, as such information is more appropriately obtained through depositions and expert disclosure" (Id.). Further, it is well settled that "[t]rial courts have broad discretion to determine whether a party has complied with discovery demands or provided sufficient information in a bill of particulars" (Stoddard v New York Oncology Hematology, P.C., 172 A.D.3d at 1506).
Plaintiff unquestionably stated the specific statutes he asserts were violated. Further of note, Labor Law § 240 establishes extremely broad liability for owners and contractors. As the pattern jury instructions provide, a jury need only find "that the (scaffolding, hoists, etc.) was not so (constructed, placed, operated, maintained) as to give proper protection to plaintiff in the performance of the work, and that the (construction, placement, operation, maintenance) of the (scaffolding, hoists, etc.) was a substantial factor in causing plaintiff s injury" (PJI 2:217).
Considering this broad liability, Plaintiff need not establish the particular way he fell beyond that, as alleged, Plaintiff was not provided with "an appropriate and safe ladder" and that Defendant "failed to ensure that the ladder was stabilized." Certainly during depositions or through other discovery devices, Defendant may uncover information that establishes that Plaintiff was the sole proximate cause of his injuries, but "[a] bill of particulars is not a form of disclosure" (Blank v Schafrann, 180 A.D.2d 886, 887 [1992] [Noting comparatively that "[o]n the other hand, interrogatories are a discovery device and may be substantially broader in nature"]; see Mayer v Hoang, 83 A.D.3d 1516, 1517 [4 Dept 2011] [A bill of particulars "is not an evidence-gathering device"]).
Dept 2017]), Farrell v E. W. Howell Co., LLC, (103 A.D.3d 772, 773 [2d Dept 2013]); Chervin v Macura, 28 A.D.3d 600, 601 [2d Dept 2006]); Caplow v Otis El. Co., (176 A.D.2d 199, 200 [1
Here, the Court finds that while Plaintiff s answers do not meet the. "level of specificity sought by [D]efendant... [P]laintiff s allegations provide [D]efendant with sufficient information to conduct depositions and prepare a defense" (Graves v County of Albany, 278 A.D.2d 578, 578 [3d Dept 2000]; see Butler v Carfagna, 32 A.D.3d 1229, 1230 [4 Dept 2006]). The Court notes that the Bill of Particulars leaves a level of vagueness that will be unacceptable by the eve of time of trial. While "nothing in the CPLR limits the use of a demand for a bill of particulars until after disclosure" (Foster v Moses Ludington Hosp., 223 A.D.2d 905, 905 [3d Dept 1996]), this Court has "discretion in accepting [the] promise of future particularization" based on eventual expert evaluations, further medical treatment, and other relevant developments, particularly considering the significant nature of the injuries (Graves v County of Albany, 278 A.D.2d at 579). Therefore, the Court exercises its discretion with the expectation that Plaintiff will provide a supplemental bill of particulars at the appropriate time (see CPLR 3043 [b]; see also Miccarelli v Fleiss, 219 A.D.2d 469, 470 [1
Dept 1991]). Rather than standing for the proposition put forth by Defendant, these cases instead hold that where a "plaintiff has affirmatively placed [his or] her entire medical condition in controversy through the broad allegations of a physical injury," their current medical condition and medical history is broadly discoverable (Diamond v Ross Orthopedic Group P.C, 41 A.D.3d 768, 768 [2d Dept 2007]; see Kanaly v Demartino, 162 A.D.3d 142, 146 [3d Dept 2018]). The Court finds the same standard will apply here and Plaintiff, by making such broad allegations, does put Plaintiff s entire medical condition in controversy and the Court will require Plaintiff to provide all necessary releases as part of disclosure.
The Court further notes that Defendant contends it is "well settled that broad allegations of physical injury contained in a complaint and bill of particulars are insufficient." In support of this proposition, Defendant cites Avila v 106 Corona Realty Corp., (300 A.D.2d 266, 267 [2d Dept 2002]), St. Clare v Cattani, (128 A.D.2d 766, 766 [2d-Dept. 1987]), Daniele v Long Is. Jewish-Hillside Med. Ctr., (74 A.D.2d 814, 814 [2d Dept 1980]), Reyes v Lexington 79th Corp., (149 A.D.3d 508, 509 [1
According, it is
ORDERED, Defendant's Motion to Compel/Preclude is denied.
This shall constitute the Decision, Order and Judgment of the court. This Decision, Order and Judgment is being returned to the attorney for Plaintiff. All original supporting documentation is being filed with the Greene County Clerk's Office. The signing of this Decision, Order and Judgment shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provision of that rule relating to filing, entry and notice of entry.
SO ORDERED AND ADJUDGED.
Papers Considered:
1. Defendant Hottenroth & Joseph Architects' Notice of Motion to Compel/Preclude dated August 16, 2019; Attorney Affirmation of Good Faith and In Support of Defendant's Motion to Compel/Preclude dated August 16, 2019; Annexed Exhibits A-J.
2. Defendant Hottenroth & Joseph Architects Memorandum of Law dated August 16, 2019, in Support of the Motion to Compel/Preclude.
3. Plaintiffs Attorney Affirmation in Opposition dated August 21, 2019; Annexed Exhibit A.
4. Defendant Hottenroth & Joseph Architects' Attorney Affirmation in Reply dated August 28, 2019, in Further Support of Defendant's Motion to Compel/Preclude