Opinion
217175.
September 18, 2008.
Bosman, Jeffers Associates, PLLC, Attorney For Plaintiffs, Albany, New York.
Carter, Conboy, Blackmore, Maloney Laird, P.C., Attorney For Defendant, Albany, New York.
Barth, Sullivan Behr, LLP, Attorneys For Defendant, Preferred Mutual Insurance Company, Buffalo, NY.
DECISION/ORDER
In early 2004 plaintiffs procured a homeowners insurance policy (Policy Number PHO 0100 70 28 08) from Preferred Mutual Insurance Company ("Preferred Mutual") covering their home located at 125 South Road, Cropseyville, New York in Rensselaer County. The policy was in effect from February 2, 2004 to February 2, 2005. In April 2004 plaintiffs discovered that the radiant heating system in their home was not working properly . They decided to file a claim on the homeowners insurance policy, and gave notice of their claim to their insurance agent, William J. Fagan Sons, Inc. ("Fagan"). It is alleged that Preferred Mutual subsequently requested a claims adjuster, Henry Talmon of H.R. Talmon Claim Associates ("Talmon") to visit plaintiffs' house to inspect the damage. Mr. Talmon did so, and allegedly indicated to the plaintiffs that Preferred Mutual would cover the loss, provided plaintiffs replaced the heating system with one similar to the existing one. Plaintiffs thereafter commenced to replace the heating system, as allegedly recommended by Talmon, using a contractor named Petra Heating Plumbing, Inc. ("Petra"). Preferred Mutual subsequently disclaimed coverage, taking the position that the loss was not insured under the policy. As a consequence of the foregoing, plaintiffs have commenced the above-captioned action to recover, inter alia, the cost of installing a new heating system. As against Preferred Mutual they seek a judgment declaring that it must provide insurance coverage for their loss, together with compensatory damages. The plaintiffs' cause of action against Talmon is for damages for negligent misrepresentation .
As alleged in the complaint, the heating system was operating constantly, and had "destroyed the piping throughout the house".
The Court dismissed two other causes of action against Talmon, sounding in fraud and negligence, in a decision-order dated July 6, 2006.
Talmon has made a motion for a further bill of particulars with regard to certain responses made pursuant to its demand. Plaintiffs oppose the motion. The Court will proceed to review the disputed items. In doing so, the Court is mindful that "`[t]he purpose of a bill of particulars is to amplify the pleadings, limit the proof and prevent surprise at trial'" (Myers v Community General Hospital of Sullivan County, 51 AD3d 1359, 1360 [3rd Dept., 2008] quoting Twiddy v Standard Mar. Transp. Servs., 162 AD2d 264, 265; see also Graves v County of Albany, 278 AD2d 578, 578 [3d Dept., 2000]).
Demand Item 5 /Bill of Particulars First Paragraph 5 : The demand recites as follows:
The Court observes that the motion papers themselves do not identify which responses contained in the bill of particulars are deficient. This can only be found in a copy of a letter dated July 30, 2007 from the attorney for Talmon, addressed to the attorney for the plaintiffs (annexed to the defendant's motion papers as Exhibit E). The letter appears to make reference to plaintiffs' bill of particulars, not defendant's demand. This is significant since the numbering of plaintiffs' responses, except for the first response, do not correspond with defendant's demands. The Court has thus only examined the responses identified in the July 30, 2007 letter.
"An Itemized and detailed statement of each and every part or portion of any building, structure and/or residence which plaintiffs will claim was damaged or destroyed herein, including, with respect to each and every part or portion, the cost of repair or replacement thereof, broken down by trade and separated as between labor and damages."
Plaintiff responded as follows:
"To the extent that defendant H.R. Talmon Claim Associates is requesting discovery information, the plaintiffs decline to offer discovery information in a bill of particulars demand and response and respectfully state that the plaintiffs will rely on the proof adduced at trial of this action and any and all statements and/or admissions made by the defendants, either in discovery proceedings or at the time of the trial. Plaintiffs will also rely upon any and all proof provided by the plaintiff to the defendants in response to discovery demands."
Talmon maintains that "it is essential to the preparation of the defense of this action that defendant Talmon be provided with a bill of particulars setting forth specifically particulars of plaintiffs' claimed $100,000.00 damages." Plaintiff, in opposition to the application, maintains that through discovery, Talmon already has in its possession all of the information and documentation with regard to the computation of plaintiff's damages. In plaintiff's view the demand is improper in that it is evidentiary in nature.
It is well settled that it is improper to demand particulars of an evidentiary nature (see Neissel v Rensselaer Polytechnic Institute, 30 AD3d 881,882 [3rd Dept. 2006]; Simpson Electric Corporation v Leucadia. Inc., 130 AD2d 738 [2d Dept., 1987]). It is also well settled that it is improper to demand particulars with respect to general damages (see Nazario v Fromchuck, 90 AD2d 483 [2d Dept., 1982]; see also 5-30 New York Civil Practice CPLR ¶ 3041.16). As stated in American List Corporation v U.S. News and World Report, Inc. ( 75 NY2d 38):
"General damages are those which are the natural and probable consequence of the breach (Kenford Co. v County of Erie, 73 NY2d 312, 319) (Kenford II), while special damages are extraordinary in that they do not so directly flow from the breach. These extraordinary damages are recoverable only upon a showing that they were foreseeable and within the contemplation of the parties at the time the contract was made [citations omitted])" American List Corporation v U.S. News and World Report, Inc., supra, at 42-43).
"General damages, that is, those which necessarily and immediately flow from the injury complained of, and which the law implies, need not be specially pleaded, but are recoverable under a general allegation of damages" (36 NY Jur2d, Damages § 195, at pp. 291-292; see also 6 Carmody Wait2d, Bills of Particulars § 36:36, at p. 324 et seq.). "Special damages, that is, those which do not necessarily result from the act complained of, are distinguishable from general damages in that they cannot be recovered unless pleaded and proved" (36 NY Jur2d, Damages § 196, at pp. 292-293). The cause of action sounding in negligent misrepresentation is described as one for the recovery of plaintiff's "pecuniary loss" (see Parrott v Coopers Lybrand, LLP, 95 NY2d 479, 484; State of California Public Employees' Retirement System v Shearman Sterling, 95 NY2d 427, 434; Yanas v Albany Medical Center Hospital, 294 AD2d 769, 770 [3d Dept., 2002]). In this instance, a review of the plaintiffs' complaint reveals that the damages which the plaintiffs seek to recover are essentially their out-of-pocket expenses which, in the Court's view, falls within the definition of pecuniary loss. The Court finds that the demand item, to the extent that it requests the plaintiffs to particularize their demand for damages, that is, "the cost of repair or replacement [of plaintiffs' damaged property] broken down by trade and separated as between labor and materials" is improper, both because it requests an itemization of general damages, and also because it requests items of an evidentiary nature. The Court finds, however, that that portion of the demand which requests "an itemized and detailed statement of each and every part or portion of any building, structure and/or residence which plaintiffs claim was damaged or destroyed herein" is proper, and that Talmon is entitled to a response. The motion is granted with respect to this item, to the limited extent indicated herein.
Paragraph 28 of plaintiffs' complaint indicates that they seek compensation for "repairs, materials, storage, living arrangements and other expenses associated with said loss."
Demand Item 6/Bill of Particulars Second Paragraph 5: The demand recites as follows:
"In the event any building, structure and/or residence herein has been repaired, in whole or in part, an itemized and detailed statement of the cost of repair or replacement, broken down by trade and separated as between labor and material, including the names and addresses of all suppliers of materials and labor."
Plaintiff responded as follows:
"To the extent that defendant H.R. Talmon Claim Associates is requesting discovery information, the plaintiffs decline to offer discovery information in a bill of particulars demand and response and respectfully state that the plaintiffs will rely on the proof adduced at trial of this action and any and all statements and/or admissions made by the defendants, either in discovery proceedings or at the time of the trial. Plaintiffs will also rely upon any and all proof provided by the plaintiff to the defendants in response to discovery demands."
The Court finds that Demand Item 6 improperly requests particulars of an evidentiary nature and/or particulars with respect to general damages. The Court finds that the defendant is not entitled to a further bill of particulars of this item.
Demand Item 7/Bill of Particulars Paragraph 6: The demand recites as follows: "[a] statement of each and every other item of loss, damage or expense for which [plaintiffs'] will attempt to recover herein." The plaintiffs responded as follows:
"To the extent that defendant H.R. Talmon Claim Associates is requesting discovery information, the plaintiffs decline to offer discovery information in a bill of particulars demand and response and respectfully state that the plaintiffs will rely on the proof adduced at trial of this action and any and all statements and/or admissions made by the defendants, either in discovery proceedings or at the time of the trial. Plaintiffs will also rely upon any and all proof provided by the plaintiff to the defendants in response to discovery demands"
The Court finds that Talmon is entitled to a description of each and every other item of loss, damage or expense for which claim is being made. The Court will direct plaintiffs to serve a further response to this item.
Demand Item 8/Bill of Particulars Paragraph 7: The demand recites as follows:
"With respect to paragraph `24' of the plaintiffs' complaint, if it is alleged that this defendant sent an engineer to the property to inspect the loss, identify the engineer sent to the property, when the request was made, who specifically made the request and when the engineer inspected the loss."
The plaintiff responded as follows:
"Plaintiffs will rely on the proof adduced at the trial of this action and any and all statements and/or admissions made by the defendants, either in discovery proceedings or at the time of the trial to establish any and all representations made by the defendant regarding the identity of the engineer and the specifics with respect to the inspection and subsequent report. However, plaintiffs allege that Stuart S. Morrison, licensed professional engineer of Morrison Engineering, PC, was sent to the property by the defendants Preferred Mutual Insurance Company and/or H.R. Talmon Claim Associates to inspect the loss and subsequently prepared a report."
In the Court's view, plaintiffs waived any objection to this demand item by responding in the manner in which they have. The Court finds that plaintiffs should be directed to provide a further response to this item.
Demand Item 11/Bill of Particulars Paragraph 10: The demand recites as follows:
"With respect to paragraph `26' of the plaintiffs' complaint, set forth the names(s) and address(es) of the representatives from (a) Interclaims; (b) the contractor/plumber. PETRA; (c) the engineer present on behalf of the defendant insurer, whom the plaintiffs' claim HARRY TALMON advised that the loss would be covered under the subject policy."
Plaintiffs response recites as follows:
"To the extent that defendant H.R. Talmon Claim Associates is requesting discovery information, the plaintiffs decline to offer discovery information in a bill of particulars demand and response and respectfully state that the plaintiffs will rely on the proof adduced at trial of this action and any and all statements and/or admissions made by the defendants, either in discovery proceedings or at the time of the trial. Upon information and belief, however, plaintiffs allege the following:
(a) Interclaims's last known address is: 3512 Rosendale Road, Niskayuna, NY 12309
(b) PETRA's last known address is: c/0 Jeffrey Senecal, 313 State Rte 443, Schoharie, NY 12157
(c) Defendant Preferred Mutual Insurance Company provided an Engineer's Report in response to the plaintiffs discovery demand. In reliance upon the defendant Preferred Mutual Insurance Company's response, the Engineer was Stuart S. Morrison, PE of Morrison Engineering, PC, located at 10 North Main Street, Voorheesville, NY 12186."
In the Court's view, plaintiffs waived any objection to this demand item by responding in the manner in which they have. The Court finds that plaintiffs should be directed to provide a further response to this item.
Demand Item 12/ Bill of Particulars Paragraph 11: The demand recites as follows: "[w]ith respect to paragraph `26' of the plaintiffs' complaint, set forth each and every representation, either written or verbatim, which the plaintiffs allege were made by HARRY TALMON that the work performed to repair the loss would be paid for by the insurer under the terms of the policy, specifying the date, time and place that such representation(s) was made."
Plaintiffs responded as follows.
"Plaintiffs will rely on the proof adduced at the trial of this action and any and all statements and/or admissions made by the defendants, either in discovery proceedings or at the time of the trial to establish any and all representations made by the defendant regarding the statements made by the defendant with respect to paragraph 26 of the complaint. In addition to those allegations set forth in the Complaint and inferred by subsequent papers filed by the plaintiff in opposition to the defendant's dismissal motion, the plaintiffs allege that after the property loss and at the plaintiffs' residence that the defendant stated in sum and substance that plaintiffs were to `go ahead' with the work and `to replace it with a like for system' and that `it would be covered by the insurance."'
Mindful that plaintiffs' cause of action sounds in negligent representation, the Court finds that this demand is proper in that Talmon is entitled to particulars with regard to the alleged representations made by Harry Talmon. All representations upon which the plaintiffs intend to rely should be set forth, without incorporation by reference to other documents. The Court will direct that the plaintiff serve a further bill of particulars of this item.
Demand Item 13/Bill of Particulars Paragraph 12: The demand recites as follows:
"With respect to paragraph `28' of the plaintiffs' complaint, set forth each and every representation, either written or verbatim, which the plaintiffs allege were made by this defendant, specifically regarding the allegation that the insurer would pay for repairs, materials, storage, living arrangements and other expenses associated with said loss, specifying the date, time and place that such representations(s) was made."
Plaintiffs' response recites as follows:
"Plaintiffs will rely on the proof adduced at trial of this action and any and all statements and/or admissions made by the defendants, either in discovery proceedings or at the time of the trial to establish any and all representations made by the defendant regarding the statements made by the defendant with respect to paragraph 28 of the complaint. In addition to those allegations set forth in the complaint and inferred by subsequent papers filed by the plaintiff in opposition to the defendant's dismissal motion, the plaintiffs allege that after the property loss and at the plaintiffs' residence that the defendant stated in sum and substance that plaintiffs were to "go ahead" with the work and to "replace it with a like for like system" and that "it would be covered by insurance."
Inasmuch as plaintiffs' cause of action is one for negligent misrepresentation, the Court finds that this demand is proper in that Talmon is entitled to particulars with regard to the alleged representations made by the defendant. All representations upon which the plaintiffs intend to rely should be set forth, without incorporation by reference to other documents. The Court will direct that the plaintiff serve a further bill of particulars of this item.
Demand Item 21/Bill of Particulars Paragraph 20: The demand item recites as follows:
"With respect to paragraph `50' of the plaintiffs' complaint, set forth with particularity each and every fraudulent representation made by this defendant to the plaintiffs; including the name of the person making the fraudulent representation, the name of the person(s) to whom the representation was made and the date, time and place of such representation(s)."
Plaintiffs response was as follows:
"Plaintiffs will rely on the proof adduced at trial of this action and any and all statements and/or admissions made by the defendants, either in discovery proceedings or at the time of the trial to establish any and all representations made by the defendant regarding the statements made by the defendant with respect to paragraph 50 of the complaint. In addition to those allegations set forth in the complaint and inferred by subsequent papers filed by the plaintiff in opposition to the defendant's dismissal motion, the plaintiffs allege that after the property loss and at the plaintiffs residence that the defendant stated in sum and substance that plaintiffs were to "go ahead" with the work and to "replace it with a like for like system" and that "it would be covered by insurance."
The Court finds that this demand is improper, not for the reasons advanced by the plaintiffs, but rather because the Court dismissed the cause of action sounding in fraud by order dated July 7, 2006. The response would only serve to inappropriately re-introduce issues of fraud into the case. The Court finds that the defendant is not entitled to a further bill of particulars of this item.
Accordingly, it is
ORDERED, that the motion for a further bill of particulars is granted with respect to demand items 5, 7, 8, 11, 12 and 13, as limited in this decision, but is otherwise denied; and it is further
ORDERED, that plaintiffs serve a further bill of particulars of the foregoing items within twenty (20) days of the date of service of a copy of this order with notice of entry.
This shall constitute the decision and order of the Court. All papers are returned to the attorney for the defendant H.R. Talmon Claim Associates, who is directed to enter this Decision/Order without notice and to serve all attorneys of record with a copy of this Decision/Order with notice of entry.
Papers Considered:
1. Notice of Motion of Defendant H.R. Talmon Claim Associates dated June 9, 2008, Supporting Papers and Exhibits
2. Affirmation of Laurence D. Behr, Esq., dated July 1, 2008
3. Affirmation in Opposition of T. Padric Moore, Esq., dated June 26, 2008