Opinion
# 2018-032-070 Claim No. 129891 Motion No. M-92145 Cross-Motion No. CM-92146
10-09-2018
BRYAN BURY v. THE STATE OF NEW YORK
Sacks & Sacks, LLP By: David H. Mayer, Esq. Burke, Scolamiero & Hurd, LLP By: Judith B. Aumand, Esq.
Synopsis
Defendant's motion to compel service of an amended bill of particulars is granted insofar as the verified bill of particulars contains broad language that does not properly limit the proof. Defendant's motion to compel a response to certain discovery demands is granted. Claimant's cross motion seeking a response to discovery demands is denied as moot.
Case information
| UID: | 2018-032-070 |
| Claimant(s): | BRYAN BURY |
| Claimant short name: | BURY |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 129891 |
| Motion number(s): | M-92145 |
| Cross-motion number(s): | CM-92146 |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Sacks & Sacks, LLP By: David H. Mayer, Esq. |
| Defendant's attorney: | Burke, Scolamiero & Hurd, LLP By: Judith B. Aumand, Esq. |
| Third-party defendant's attorney: | |
| Signature date: | October 9, 2018 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant filed the instant claim on or about June 23, 2017 seeking damages for injuries sustained while he was performing structural steel work on a construction site. The claim states that claimant was injured when a "barring . . . fell from a height onto claimant's lower extremity" (Verified Claim ¶ 3). Defendant served its Answer on or about July 26, 2017. On or about July 31, 2017, defendant served its Demand for a Verified Bill of Particulars along with various discovery demands. Claimant served its response to defendant's discovery demands and a Bill of Particulars on or about September 20, 2017. By letter dated October 24, 2017, defendant objected to certain statements set forth in claimant's Bill of Particulars and requested a further Bill of Particulars. By letter dated February 22, 2018, defendant again objected to certain statements set forth in claimant's Bill of Particulars and requested a further Bill of Particulars. The parties were unable to resolve the discovery dispute, resulting in the instant motion filed by defendant seeking to compel further responses to defendant's Demand for a Verified Bill of Particulars. Defendant also seeks the production of an authorization for wage and tax information; contracts and agreements; and settlement or payment information. Claimant then filed a cross motion seeking a response to discovery demands, and arguing that its responses to defendant's Demand for a Verified Bill of Particulars was sufficient. Defendant then filed an affirmation in further support of its motion and in opposition to claimant's cross motion, stating that it had served a response to claimant's discovery demands.
Defendant objects to the following responses contained in claimant's Verified Bill of Particulars:
3. An itemized and detailed statement specifying in detail the acts or omission constituting the negligence claimed.
RESPONSE: The claim arose on the 29th day of April, 2017 at approximately 1:15 a.m. at premises under construction located at the Long Island Expressway, specifically the 188th Street overpass, in the Borough of Queens, City and State of New York. At all times herein mentioned, the STATE OF NEW YORK owned, operated, managed and controlled the aforesaid premises and further retained numerous contractors including El Sol Contracting to perform work, labor and services thereat. While claimant was lawfully upon the aforesaid premises as an employee of the aforesaid El Sol Contracting performing structural steel work, he was caused to sustain serious and severe injuries when claimant was struck by a barring that fell from a height onto claimant's lower extremity; the STATE OF NEW YORK, its contractors, agents and employees failed to protect claimant against falling objects thereat; further, failed to ensure that claimant would not be struck by a falling object which required securing for the purposes of its place to prevent claimant from being struck by a falling object; further, failed to secure objects that required securing for the purposes of its undertaking ; further, failed to provide proper illumination thereat; further, violated Sections 200, 240 and 241(6) of the Labor Law of the State of New York, Rule 23 of the Industrial Code of the State of New York, specifically, but not limited to: 23-1.5, 23-1.7, 23-1.8, 23-1.11, 23-1.15, 23-1.17, 23-1.18, 23-1.19, 23-2.1, 23-2.2, 23-2.3, 23-5, 23-6, Article 1926 of O.S.H.A. and was otherwise negligent careless and reckless, causing claimant to sustain serious and severe injuries.
6. An itemized and detailed statement of each and every injury suffered by the [claimant].
RESPONSE: LEFT FOOT: Left foot proximal phalanx oblique communited and displaced fractures; Communited fractures of the left foot hallux; Displacement of the fractured locations with fracture fragments; Internal derangement; Restriction of motion; Significantly altered gait; Significant pain . . . surgery on his left foot on April 29, 2017 . . . further surgery on May 19, 2017 . . . Further surgical intervention will likely be required in the future.
8. A statement of whether the [claimant] ever sustained any injuries or suffered from any conditions or symptoms similar to those described in paragraph 6 or 7. If so, specifically set forth the date, place and circumstances surrounding the occurrence of said injury or injuries and/or the symptoms and conditions and set forth the names and addresses of any physicians, hospitals and/or any other healthcare providers who or which treated [claimant] for the injury or injuries or condition or symptoms and the dates of any and all such treatment.
RESPONSE: Objection, not within the scope of a bill of particulars. See CPLR 3043.
16. State the total amount claimed as special damages for loss of earnings, further specifying the [claimant's] business and/or occupation; name and address of employer; date(s) of first and last employment; amount of wages and/or salary per day, week, or month' length of time [claimant] was prevented from performing said business and/or occupation, further specifying the date the [claimant] returned to work.
RESPONSE: At the time of the accident [claimant] was employed as a Journeyman Union Ironworker with El Sol Contracting and was earning approximately $110.00 per hour in union wages and benefits. [Claimant] has been completely and totally disabled from his normal vocation an indefinite time in the future. [Claimant] has continued to lose approximately $110.00 per hour in both union wages and benefits. If [claimant] is unable to return to his normal vocation as a Journeyman Union Ironworker, [claimant] will then claim approximately $150,000.00 per year which includes both lost wages and all union benefits such as loss of annuity, loss of topping out annuity, loss of family health coverage, loss of vacation pay and loss of pension or severe diminution of the same. [Claimant] reserved the right to supplement this response and exchange economic reports pursuant to the CPLR.
17. Specify the particular sections of the (a) laws, (b) statutes, (c) ordinances, (d) rules, and (e) regulations which the [claimant] will claim defendant violated and in what respect, all as alleged in the [claim].
RESPONSE: Defendants violated Sections 200, 240 and 241(6) of the Labor Law of the State of New York, Rule 23 of the Industrial Code of the State of New York, specifically, but not limited to: 23-1.5, 23-1.7, 23-1.8, 23-1.11, 23-1.15, 23-1.17, 23-1.18, 23-1.19, 23-2.1, 23-2.2, 23-2.3, 23-5, 23-6, Article 1926 of O.S.H.A.
20. Specify each and every way the defendant violated Section 200 of the Labor Laws of the State of New York.
RESPONSE: See Response to Paragraph 3.
21. Specify each and every way the defendant violated Section 241(6) of the Labor Laws of the State of New York.
RESPONSE: See Response to Paragraph 3.
22. Specify each and every way the defendant violated Section 240(1) of the Labor Laws of the State of New York.
RESPONSE: See Response to Paragraph 3.
23. Specify each and every exception to Article 16 that is being alleged.
RESPONSE: Objection, not within the scope of a bill of particulars, See CPLR 3043.
It is well settled that "the object of a bill of particulars is to amplify the pleadings, limit the proof and prevent surprise at trial" (Graham v Murphy, 135 AD2d 326, 328 [3d Dept. 1988]; Arroyo v Fourteen Estusia Corp., 194 AD2d 309 [1st Dept. 1993]). While a demand for the details of a claim or defense is proper, a demand for the evidentiary material in support of the claim or defense is not (Bassett v Bando Sangsa Co., 94 AD2d 358 [1st Dept. 1983], appeal dismissed 60 NY2d 962 [1983]; Feraco v Long Is. Jewish-Hillside Med. Ctr., 97 AD2d 498 [2d Dept. 1983]; Ganin v Janow, 86 AD2d 857 [2d Dept. 1982]).
CPLR 3043 (a) allows a demand for a "general statement of the acts or omissions constituting the negligence claimed." Here, defendant argues that claimant's responses to paragraphs 3, 17, 20, 21, and 22 are inadequate in describing the specific acts of negligence committed by defendant. Claimant's responses state that claimant was injured when a "barring" fell from a height onto him. The responses further indicate that defendant was negligent for failing to secure objects and failing to ensure that claimant would not be struck by falling objects. "The purpose of a bill of particulars is to describe the general claims of the [claim] with specificity, thereby limiting proof and preventing surprise at trial" (MacDormand v Blumenberg, 182 AD2d 991, 992 [3d Dept. 1992]). Although "[s]pecific questions are far more valuable in sharpening the issues and less likely to evoke vague and conclusory responses," (Kupferberg v State of New York, 97 Misc 2d 519, 522 [Ct Cl 1978]) defendant only requested "[a]n itemized and detailed statement specifying in detail the acts or omission constituting the negligence claimed," a specification of any laws, statutes, ordinances, rules or regulations that have been violated and in what respects, and a specification of "each and every way the defendant violated" sections 200, 240(1) and 241(6) of the Labor Laws of the State of New York (Aumand Aff. Ex. C ¶¶ 3, 17, 20-22). Thus, claimant's responses to defendant's inquiries at paragraphs 3, 20, 21, and 22 were proper insofar as the responses set forth the specific acts of negligence, and claimant was not required to provide any further detail (Graves v County of Albany, 278 AD2d 578, 579 [3d Dept. 2000]; Felock v Albany Med. Ctr. Hosp., 258 AD2d 772, 774 [3d Dept. 1999]). Where a claim or defense is based upon a violation of a statute, rule or regulation, specification of the particular statutory violation alleged is required (Sacks v Town of Thompson, 33 AD2d 627 [3d Dept. 1969]). Thus, claimant's response at paragraph 17 was proper insofar as it listed particular statutory violations.
However, the Court finds that claimant's responses to paragraphs 3, 17, 20, 21, and 22 are insufficient insofar as they include broad language such as "otherwise negligent careless and reckless" and "specifically, but not limited to". At paragraph 17, claimant listed violations of Rule 23 of the Industrial Code of the State of New York, but prefaced the list with the language "specifically, but not limited to" (Verified Bill of Particulars ¶ 17). The responses at paragraphs 3, 20, 21, and 22 include statements that defendant was "otherwise negligent careless and reckless" (Verified Bill of Particulars ¶¶ 3, 21-23). The use of this language is improper, as such language fails to properly limit the proof (Neissel v Rensselaer Polytechnic Institute, 30 AD3d 881, 882 [3d Dept. 2006]; see also McDougald v Garber, 135 AD2d 80, 95 [1st Dept. 1988], affd as mod 73 NY2d 246 [1989]). Moreover, claimant failed to specify how the Industrial Code violations were violated, as requested by defendant. Accordingly, the Court finds that claimant must amend the Bill of Particulars to remove the language "otherwise negligent careless and reckless" and "specifically, but not limited to" contained in the responses to paragraphs 3, 17, 20, 21, and 22 and further specify defendant's negligent acts and/or omissions, if required. Further, claimant must provide a response to defendant's request for claimant to specify in what respects the Industrial Code was violated.
Defendant argues that claimant's statement at paragraph 6 that "[f]urther surgical intervention will likely be required in the future" is vague. The Court disagrees. The Verified Bill of Particulars provides extensive detail regarding the injuries claimant sustained to his left foot (Verified Bill of Particulars ¶ 6). Thus, the Court finds that the response is adequate.
Paragraph 8 requests that claimant provide details regarding whether he ever suffered a similar injury to the injury alleged in the claim. Claimant objected to this request as outside of the scope of the bill of particulars. The Court agrees. CPLR 3043 (a) (6) requires a "[s]tatement of the injuries and description of those claimed to be permanent . . ." Here, claimant does not allege that the injuries sustained are exacerbated by any preexisting injuries (see Verified Bill of Particulars ¶ 6). If claimant had made such a claim, defendant would be entitled to discovery regarding the preexisting injuries. Accordingly, the Court finds that claimant is not required to respond to defendant's request at paragraph 8 (see Stewart v Dunkleman, 128 Ad3d 1338, 1339 [4th Dept. 2015]).
Defendant also argues that claimant's response at paragraph 16 fails to delineate how much of the claimed lost wages are attributable to actual lost wages and how much are attributable to lost benefits. Claimant specifically stated in response to this demand that he "reserved the right to supplement this response and exchange economic reports pursuant to the CPLR" (Verified Bill of Particulars ¶ 16). Thus, the Court finds this response sufficient (Tracy v Fagin, 31 AD3d 535, 536 [2d Dept. 2006]), and expects that claimant will provide information to defendant regarding claimant's lost wages and lost benefits during discovery.
Lastly, claimant objected to defendant's demand at paragraph 23, which asks claimant to specify each and every exception to Article 16 that is being alleged. CPLR 1603 requires a claimant to allege any exceptions to the limitations of liability set forth in Article 16. Claimant did not plead any such exceptions in the claim. However, defendant would be unfairly surprised if claimant were to later plead such an exception (Roseboro v New York City Tr. Auth., 286 AD2d 222, 223 [1st Dept. 2001]). Thus, the Court directs claimant to respond to defendant's demand at paragraph 23 (see Mastroianni v County of Suffolk, 184 Misc 2d 125, 131 [Sup Ct, Suffolk County 2000]).
Defendant further requests that the Court order defendant to respond to defendant's demands for an authorization for wage and tax information; contracts and agreements; and settlement or payment information. Claimant has not objected to these demands. Therefore, the Court finds that defendant is entitled to a response regarding these demands. Claimant's cross motion seeking a response to its discovery demands is now moot as defendant served its response to claimant's demands after the filing of claimant's cross motion (Reply Affirmation Exhibit A).
Based upon the foregoing, it is hereby
ORDERED that defendant's motion to compel (M-92145) is granted in part as set forth above; and it is further
ORDERED that claimant serve an Amended Bill of Particulars that amends the responses contained in paragraphs 3, 17, 20, 21, 22 and 23 as set forth above; and it is further
ORDERED that claimant serve a response to defendant's demands for an authorization for wage and tax information; contracts and agreements; and settlement or payment information; and it is further
ORDERED that claimant's cross motion (CM-92146) is denied as moot.
October 9, 2018
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Notice of Motion to Compel, dated March 13, 2018; and Attorney Affirmation in Support of Notice of Motion to Compel, affirmed by Judith B. Aumand, Esq. on March 13, 2018, with Exhibits A through H annexed thereto. 2. Notice of Cross-Motion, dated April 4, 2018; and Affirmation in Support of Claimant's Cross-Motion and in Opposition to Respondent's Motion, affirmed by David H. Mayer, Esq. on April 4, 2018, with Exhibits 1 through 3 annexed thereto. 3. Reply Attorney Affirmation in Further Support of Notice of Motion to Compel and in Opposition to Plaintiff's Cross-Motion, affirmed by Judith B. Aumand, Esq. on April 10, 2018, with Exhibit A annexed thereto.