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Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: September 25, 2020

Demand for a Bill of Particulars Vacated Because it Was Being Used as a Discovery Device

On September 8, 2020, Justice Borrok of the New York County Commercial Division issued a decision in Orentreich v. John B. Murray Architect, LLC, 2020 NY Slip Op. 32944(U), vacating a demand for a bill of particulars because it was being used as a discovery device, explaining:

The bill of particulars has been abolished in many jurisdictions, including in the federal courts, as broader disclosure statutes have rendered them superfluous. In fact, although the drafters of the CPLR also recommended its abolishment in conjunction with the expansion of the disclosure statutes now found in article 31, the Legislature retained the bill of particulars, not as a disclosure device, but in its traditional and limited role as a means of amplifying a pleading. In other words, the purpose of the bill of particulars is to amplify the pleading, limit the proof, and prevent surprise at trial, but it is not a vehicle to obtain evidentiary material. When a bill of particulars is replete with palpably improper evidentiary requests, the proper remedy is vacatur of the bill of particulars. In addition, the commercial division rules limit interrogatories to 25, including subparts, unless the court provides a different limit in the preliminary conference order. In this case, no such expansion was requested or provided.

Here, the Defendants’ Demand for a Verified Bill of Particulars, which contains 75 paragraphs, excluding subparts, seeks details more appropriately developed at a deposition and not consonant with the purposes of a bill of particulars. To wit, the Defendants’ Demand for a Verified Bill of Particulars seeks the identification of witnesses with knowledge of relevant information (requests 1 and 2), and a computation of damages (request 11). Significantly, the majority of the requests vaguely ask the Plaintiff to “state the basis for the allegations” for nearly every paragraph of the 95 paragraph, highly detailed complaint (Requests 13-75). However, such requests are improper in a bill of particulars and must be sought in the form of interrogatories pursuant to Rule 11-a of the Commercial Division Rules or by another appropriate disclosure device. The Defendants may not avoid the limitation on the number of interrogatories by simply calling it a demand for a bill of particulars. Accordingly, the Defendants’ Demand for a Verified Bill of Particulars is vacated.

(Internal quotations and citations omitted).

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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