Hayes v. Kearney

21 Citing cases

  1. Stoddard v. N.Y. Oncology Hematology, P.C.

    172 A.D.3d 1504 (N.Y. App. Div. 2019)   Cited 5 times

    "The purpose of a bill of particulars is to amplify the pleadings, limit the proof and prevent surprise at trial. To that end, a bill of particulars must clearly detail the specific acts of negligence attributed to each defendant, and the use of phrases such as ‘including but not limited to’ or ‘among other things’ ... plainly are improper as they destroy its most essential functions" ( Myers v. Community Gen. Hosp. of Sullivan County , 51 A.D.3d 1359, 1360, 859 N.Y.S.2d 753 [2008] [internal quotation marks, brackets and citations omitted]; seeNeissel v. Rensselaer Polytechnic Inst. , 30 A.D.3d 881, 881–882, 818 N.Y.S.2d 627 [2006] ; Hayes v. Kearney , 237 A.D.2d 769, 770, 655 N.Y.S.2d 170 [1997] ). "[E]ach defendant is entitled to a bill of particulars that narrows the issues sufficiently to permit a reasonable defense" ( Hayes v. Kearney , 237 A.D.2d at 770, 655 N.Y.S.2d 170 [internal quotation marks and citation omitted] ), and responses "must clearly detail the specific acts of negligence attributed to each defendant" ( id. at 769, 655 N.Y.S.2d 170 [internal quotation marks and citation omitted]; seeFelock v. Albany Med. Ctr. Hosp. , 258 A.D.2d 772, 773, 685 N.Y.S.2d 844 [1999] ). Trial courts have broad discretion to determine whether a party has complied with discovery demands or provided sufficient information in a bill of particulars (seeGraves v. County of Albany , 278 A.D.2d 578, 578, 717 N.Y.S.2d 420 [2000] ).

  2. Myers v. Community

    51 A.D.3d 1359 (N.Y. App. Div. 2008)   Cited 15 times

    "The purpose of a bill of particulars is to amplify the pleadings, limit the proof and prevent surprise at trial" ( Twiddy v Standard Mar. Transp. Servs., 162 AD2d 264, 265 [citation omitted]; see Graves v County of Albany, 278 AD2d 578). To that end, a bill of particulars "must clearly detail the specific acts of negligence attributed to each defendant" ( Miccarelli v Fleiss, 219 AD2d 469, 470; see Neissel v Rensselaer Polytechnic Inst., 30 AD3d 881, 881-882; Hayes v Kearney, 237 AD2d 769), and the use of phrases such as "including but not limited to" or "among other things," which plaintiffs employed, plainly are improper as they "destroy[] its most essential functions" ( Hayes v Kearney, 237 AD2d at 770 [internal quotation marks and citation omitted]; see Neissel v Rensselaer Polytechnic Inst, 30 AD3d at 882). Here, despite being given three opportunities to cure what Supreme Court appropriately concluded was a nonresponsive bill of particulars — particularly with respect to the injuries, subsequent surgeries and loss of earnings allegedly suffered or incurred by Myers — and being warned that continued noncompliance would result in dismissal, plaintiffs nonetheless failed to provide more detailed responses to defendant's demand.

  3. Reilly v. Eric Fishman, Louis Vizioli, Lisa Youkeles, Loredana Militaru, Kanwalwir Sanghera, Eric Shulman, Victoria Chernyak, Elliot Rhee, Lisa Millman, Anthony Lin, Westmed Med. Grp., P.C.

    2019 N.Y. Slip Op. 30198 (N.Y. Sup. Ct. 2019)

    A bill of particulars in a medical malpractice action must provide a general statement of the acts or omissions constituting the alleged negligence (Shanoff v Goylan, 139 AD3d 932 [2d Dept 2016]; Contreras v Adeyemi, 102 AD3d 720 [2d Dept 2013]). Responses to a demand for a bill must clearly detail the specific acts of negligence attributed to each defendant (Hayes v Kearney, 237 AD2d 769 [3rd Dept 1997]; Miccarelli v Fleiss, 219 AD2d 469 [1st Dept 1995]; Berger v Feinerman, 203 AD2d 407 [2d Dept 1994]; Batson v LaGuardia Hosp., 194 AD2d 705 [2d Dept 1993]).

  4. Patrie v. Camba

    38 N.Y.S.3d 831 (N.Y. Sup. Ct. 2016)   Cited 1 times

    s convey the general manner in which it is alleged that harm was caused to the plaintiff with specific responses such as the defendants having failed to timely diagnose and treat a cerebral vascular event prior to permanent neurological injury ; having failed to administer thrombolytic therapy, failing to timely order diagnostic studies, failing to timely review and act upon the results of diagnostic studies performed, failing to reasonably and properly interpret the results of diagnostic studies performed, failing to re-order diagnostic studies, failing to heed patient complaints, failing to reasonably and properly monitor and, or, treat blood pressure, failing to formulate an accurate differential diagnosis, failing to reconsider the differential diagnosis formed, and, inter alia, failing to inform and warn of the risks involved or associated with a proposed treatment. The purpose of a bill of particulars is to amplify the pleadings, limit the proof and prevent surprise at trial' “ (Hayes v. Kearney, 237 A.D.2d 769, 655 N.Y.S.2d 170, quoting Twiddy v. Standard Mar. Transp. Servs., 162 A.D.2d 264, 265, 556 N.Y.S.2d 622 ; see, MacDormand v. Blumenberg, 182 A.D.2d 991, 992, 582 N.Y.S.2d 300 ). “The responses to a demand for a bill must clearly detail the specific acts of negligence attributed to each defendant' “ (Hayes v. Kearney, supra, at 769, 655 N.Y.S.2d 170, quoting Miccarelli v. Fleiss, 219 A.D.2d 469, 470, 631 N.Y.S.2d 159 ).

  5. Hill v. Albany Med. Ctr. Hosp.

    2016 N.Y. Slip Op. 32800 (N.Y. Sup. Ct. 2016)

    Furthermore, a court may preclude a party from "supporting or opposing designated claims or defenses, from producing evidence[,] designated things[,] or items of testimony, or . . . from using certain witnesses" if such party "willfully fails to disclose information which the court finds ought to have been disclosed" (CPLR § 3126[2]). Notably, "'[t]he purpose of a bill of particulars is to amplify the pleadings, limit proof and prevent surprise at trial'" (Niessel v. Rensselaer Polytechnic Inst., 30 A.D.3d 881, 881-882 [3d Dep't 2006], quoting Twiddy v. Standard Mar. Transp. Servs., Inc., 162 A.D.2d 264, 265 [1st Dep't 1990]; accord Graves v. County of Albany, 278 A.D.2d at 578; Felock v. Albany Med. Ctr. Hosp., 258 A.D.2d 772, 773 [3d Dep't 1999]; Hayes v. Kearney, 237 A.D.2d 769, 769 [3d Dep't 1997]). While "responses to a demand for a bill [of particulars] must clearly detail the specific acts of negligence attributed to each defendant" (Hayes v. Kearney, 237 A.D.2d at 769 [internal quotation marks and citation omitted]), "[t]hey need not . . . provide evidentiary material or information to be gleaned from expert testimony" (Felock v. Albany Med. Ctr. Hosp., 258 A.D.2d at 773; see Graves v. County of Albany, supra at 578).

  6. Stein v. Ithaca

    129 A.D.3d 1366 (N.Y. App. Div. 2015)   Cited 8 times

    Plaintiff failed to mention the conversation regarding suicide in the bills of particulars that she provided to defendants. Accordingly, defendants were not required to disprove that unalleged theory of liability in order to be entitled to summary judgment dismissing the complaint ( seeCPLR 3043[a][3]; Price–Linden v. State of New York, 119 A.D.3d 1192, 1192–1193, 990 N.Y.S.2d 681 [2014]; Suits v. Wyckoff Hgts. Med. Ctr., 84 A.D.3d 487, 489, 922 N.Y.S.2d 388 [2011]; Hayes v. Kearney, 237 A.D.2d 769, 770, 655 N.Y.S.2d 170 [1997]; compare Marra v. Hughes, 123 A.D.3d 1307, 1308 n., 999 N.Y.S.2d 576 [2014] ). Further, plaintiff raises this theory of liability for the first time on appeal, rendering the argument unpreserved for our review ( see Seton Health at Schuyler Ridge Residential Health Care v. Dziuba, 127 A.D.3d 1297, 1299 n. 2, 6 N.Y.S.3d 750 [2015]; Agility Funding, LLC v. Wholey, 119 A.D.3d 1168, 1169, 990 N.Y.S.2d 666 [2014] ).

  7. Stidham v. Clerk

    57 A.D.3d 1369 (N.Y. App. Div. 2008)   Cited 6 times

    "Where, as here, the complaint is factually vague, and sheds little light on the particular acts or omissions that form the basis of the lawsuit, [the] defendant is entitled to a bill of particulars that narrows the issues sufficiently to permit a reasonable defense" ( Heyward, 215 AD2d at 968). Where the alleged negligence is the failure to make a proper diagnosis, that rule surely entitles the defendant to be informed of the "condition or conditions that it is claimed defendant failed to diagnose and improperly treated or failed to treat" ( Caudy v Rivkin, 109 AD2d 725, 726; see Hayes v Kearney, 237 AD2d 769, 770; Morris v Fein, 177 AD2d 915, 916; cf. Butler v Carfagna, 32 AD3d 1229).

  8. Butler v. Carfagna

    32 A.D.3d 1229 (N.Y. App. Div. 2006)   Cited 2 times

    Memorandum: Supreme Court properly exercised its discretion in denying the motion of defendant Vincent Carfagna, M.D. and that part of the motion of defendant Kathleen A. Kelly, M.D. seeking an order compelling plaintiff to provide a further bill of particulars. Plaintiffs responses to defendants' demands provide a "[g]eneral statement of the acts or omissions constituting the negligence claimed" (CPLR 3043 [a] [3]), and the responses provide sufficient information to enable defendants to conduct depositions and prepare their defenses ( see Graves v County of Albany, 278 AD2d 578; cf. Hayes v Kearney, 237 AD2d 769, 770).

  9. Neissel v. Rensselaer Polytechnic Institute

    30 A.D.3d 881 (N.Y. App. Div. 2006)   Cited 13 times

    Turning to the issues raised in this appeal, we first note that "[t]he purpose of a bill of particulars is to amplify the pleadings, limit the proof and prevent surprise at trial" ( Twiddy v. Standard Mar. Transp. Servs., 162 AD2d 264, 265; accord Graves v. County of Albany, 278 AD2d 578, 578; Felock v. Albany Med. Ctr. Hosp., 258 AD2d 772, 773). To this end, a bill of particulars must specify the acts or omissions attributed to each defendant and the statutes, regulations or ordinances alleged to have been violated by each defendant ( see Graves v. County of Albany, supra at 578-579; Felock v. Albany Med. Ctr. Hosp., supra at 773; Hayes v. Kearney, 237 AD2d 769, 769). 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 ( see Felock v. Albany Med. Ctr. Hosp., supra at 773). Here, plaintiff served a verified bill of particulars in response to each defendant's demand which provided general and nonspecific responses regarding the negligence of all defendants rather than particularizing the acts or omissions each is alleged to have committed ( see Castellano v. Norwegian Christian Home Health Ctr., Inc., 24 AD3d 490, 491; Hayes v. Kearney, supra at 770; McLaughlin v. Charles, 91 AD2d 1119, 1119).

  10. Graves v. County of Albany

    278 A.D.2d 578 (N.Y. App. Div. 2000)   Cited 22 times

    We affirm. "'The purpose of a bill of particulars is to amplify the pleadings, limit the proof and prevent surprise at trial'" (Hayes v. Kearney, 237 A.D.2d 769, quoting Twiddy v. Standard Mar. Transp. Servs., 162 A.D.2d 264, 265). While acts of negligence attributed to each defendant must be specified in the responses to a demand for a bill of particulars, they need not provide evidentiary material or expert testimony (see, Felock v. Albany Med. Ctr. Hosp., 258 A.D.2d 772, 773).