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Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: June 21, 2021

Bill of Particulars Not a Discovery Device

On June 2, 2021, the Second Department issued a decision in Kramarenko v. New York Community Hosp., 2021 NY Slip Op. 03450, holding that a bill of particulars is not a discovery device, explaining:

By order dated May 2, 2017, a J.H.O./Referee granted the separate motions of the defendants New York Community Hospital and Hassan Farhat, the defendants Metropolitan Jewish Home Care, Inc., Metropolitan Jewish Health System, Home First, Inc., and Beth Israel Medical Center, and the defendants Yury Zamdborg and Ilya Bilik, inter alia, to strike the complaint insofar as asserted against each of them on the ground that the amended bills of particulars served by the plaintiffs in response to the defendants’ motions failed to comply with multiple prior court orders directing the plaintiffs to provide the defendants with supplemental or amended bills of particulars. Thereafter, the plaintiffs moved to vacate that order. In the order appealed from, the Supreme Court denied the plaintiffs’ motion to vacate. The plaintiffs appeal. We reverse.

Although the defendants are correct that the plaintiffs raise for the first time on appeal the contention that the J.H.O./Referee lacked authority under CPLR 3104 to issue the order dated May 2, 2017, this contention may be reached since it involves a question of law that is apparent on the face of the record and could not have been avoided by the Supreme Court if it had been brought to its attention. Thus, we reach the issue.

Since a bill of particulars is not a disclosure device but a means of amplifying a pleading, the present dispute over the contents of the plaintiffs’ amended bills of particulars is not part of any disclosure procedure that CPLR 3104 authorizes a referee to supervise. Since CPLR 3104 did not authorize the J.H.O./Referee to determine the defendants’ separate motions, among other things, to strike the complaint insofar as asserted against each of them based upon the defendants’ objections to the plaintiffs’ amended bills of particulars, and there exists no order of reference authorizing the J.H.O./Referee to determine the defendants’ motions, the J.H.O./Referee was without authority to determine the defendants’ separate motions, inter alia, to strike the complaint insofar as asserted against each of them. Accordingly, the order dated May 2, 2017, must be vacated.

Contrary to the defendants’ contentions, the amended bills of particulars were sufficient given that the parties’ depositions have not been held. The defendants failed to demonstrate that the plaintiffs’ delay in providing amended bills of particulars was willful. Accordingly, the defendants’ separate motions, among other things, to strike the complaint insofar as asserted against each of them must be denied.

A big part of complex commercial litigation is giving, receiving and evaluating evidence (this is called “discovery”). The scope of discovery in New York is broad, but it does not include the device discussed here: a demand for a bill of particulars. As this decision shows, a bill of particulars is intended to amplify the allegations of a pleading, not as a substitute for discovery devices, such as interrogatories. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client has a question regarding discovery obligations (and what to do if a litigant is not honoring those obligations).

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