Opinion
May 20, 1996
Appeal from the Supreme Court, Suffolk County (Seidell, J.).
Ordered that the appeal from the order dated September 5, 1995, is dismissed; and it is further,
Ordered that the order dated October 26, 1994, is affirmed insofar as appealed from; and it is further,
Ordered that the respondents are awarded two bills of costs.
Pursuant to CPLR 1412, culpable conduct is an affirmative defense that is to be pleaded and proved by the party asserting such a defense ( see, CPLR 1412). Upon an appropriate demand, a defendant is required to particularize this affirmative defense ( see, Siegal, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3041:6, at 482; Forney v. Huntington Hosp., 134 A.D.2d 405, 406). Here, the appellants each alleged the affirmative defense of culpable conduct in their answer to the plaintiffs' complaint. Although the plaintiffs demanded a bill of particulars, the appellants never supplied a bill of particulars or any evidence to support this affirmative defense. Instead, defense counsel indicated to the plaintiffs' counsel by letter that a response to the plaintiffs' demand for information relating to the subject affirmative defense would be "forthcoming after depositions". The appellants were in possession and control of the information and hospital records necessary to supply the details of their defense. Accordingly, we reject the appellants' claim that it was appropriate to defer answering the demand for a bill of particulars as to the affirmative defense until after the completion of depositions.
The appellants' motion, denominated as one for renewal, was not based upon new evidence which was unavailable upon the original motion and the appellants failed to offer a reasonable excuse as to why it was not submitted at that time ( see, Caffee v. Arnold, 104 A.D.2d 352). Therefore, the motion is actually one to reargue, the denial of which is not appealable ( see, e.g., Mgrditchian v Donato, 141 A.D.2d 513; Matter of Bosco, 141 A.D.2d 639).
We have reviewed the appellants' remaining contentions and find them to be without merit. Thompson, J.P., Sullivan, Joy and Florio, JJ., concur.