Part X Bill Of Particulars Bill Of Particulars

• Jurisdiction: New York

Part X — Bill of Particulars

A bill of particulars isn’t technically a pleading, although the provisions concerning the bill of particulars are located in Article 30 of the CPLR, which cover remedies and pleadings. Nor is a bill of particulars a disclosure device. A bill of particulars, instead, is “an amplification of a pleading.”³⁰⁷ It’s an “expansion” of a pleading.³⁰⁸ One party will make a demand for a bill of particulars from another party; the response to that demand is called a bill of particulars. A party demanding a bill of particulars seeks to amplify — or particularize — the claims, defenses, or both of an adversary’s pleading. Although it’s not a pleading, courts may look to a bill when they consider whether a party has sufficiently pleaded a cause of action.³⁰⁹

A bill of particulars isn’t meant for one party to obtain evidence.³¹⁰ It’s not meant for one party to inspect documents or physical evidence³¹¹ from another party. A bill of particulars isn’t meant for a party to find a witness’s name and address³¹² or to locate collateral sources of payment.³¹³ A bill of particulars is designed to “offer a more expansive statement of the pleader’s contentions rather than the evidentiary basis on which they rest.”³¹⁴ It’s meant to limit the issues and particularize each party’s claims.³¹⁵ A bill of particulars is also intended to “limit the proof and prevent surprise at trial.”³¹⁶

Under CPLR 3041, any party to an action (or proceeding) may demand a bill of particulars. For example, a defendant may demand a bill of particulars from a plaintiff. A plaintiff may demand a bill of particulars from a defendant seeking to amplify the defendant’s defenses and counterclaims.³¹⁷ A plaintiff may also demand a bill of particulars from a co-defendant about a cross-claim.³¹⁸ A third-party defendant may demand a bill of particulars not only from a defendant who impleaded a third-party defendant but also from a plaintiff.³¹⁹

Defendants use bills of particulars in criminal cases to “amplify an indictment.”³²⁰ Parties also use bills of particulars in civil cases such as personal-injury actions.

At one time the New York legislature wanted to abolish the bill of particulars in the CPLR, but it never did.³²¹ The bill of particulars has been abolished in federal court, however. It’s up to you to decide whether you’ll demand a bill of particulars in your New York State litigation practice. If you’re given no choice and must respond and write a bill of particulars, this column will explain some of the nuances of a bill of particulars.

Some Particulars About Bills of Particulars

CPLR 3041, 3042, 3043, and 3044 provide information about bills of particulars.

The demand for a bill of particulars and the bill of particulars will be specific to your case. The bill will particularize what the “pleading pleads.”³²²

If you’re seeking a bill of particulars, make a written demand. In your “Demand for Bill of Particulars,” state the items about which you’re seeking amplification. Defendants serve the demand with the answer or after the answer, but not before. Plaintiffs wanting a bill of particulars from defendants about the defendants’ defenses may serve a demand any time after the defendants have served them with an answer to the complaint. Plaintiffs wanting a bill of particulars from defendants about defendants’ counterclaims may serve a demand “with or after the reply.”³²³

You have 30 days to respond to a demand for a bill of particulars. Once you’ve received a demand, you must determine what information you’re willing to provide with particularity and what information you’re objecting to in the demand. Answer all the items in the demand, even the objectionable ones. If you object, you must give your reasons “with reasonable particularity.”³²⁴ Don’t delay or withhold your bill of particulars because you object to something. If you fail to respond to the demand for a bill of particulars, you’ll be subject to penalties, as discussed below.

If a pleading is verified, the bill of particulars must also be verified.³²⁵ An exception exists in negligence cases: Even if the pleading isn’t verified, the bill of particulars must be verified.³²⁶ An agent or the party’s attorney may verify the bill of particulars.³²⁷ Sample verification:³²⁸

I, [insert the plaintiff’s name], am the plaintiff in the above-referenced action. I have read the above bill of particulars and know its contents. The contents are true of my own knowledge, except as to those matters stated as being alleged on information and belief and, as to those matters, I believe them to be true.

I declare under penalty of perjury that the foregoing is true and correct.

Dated: [insert date].

If the party demanding a bill of particulars from you objects to your bill or if you’ve failed to respond with a bill, that party should move under CPLR 3042(c) to compel you to comply. That party may seek penalties if you’ve willfully failed to comply. Penalties exist under CPLR 3042(d) and (e) for either party’s improper behavior. Under CPLR 3042(c), the court isn’t limited to issuing a conditional preclusion order; the court may sanction you if the court finds that your behavior has been willful. If you don’t comply with the conditions the court delineates in its order, you’ll be precluded from introducing documentary or testimonial evidence at trial. A conditional preclusion order gives you a second chance to comply before a court precludes you.³²⁹ A conditional preclusion order is common in disclosure practice. But you might not always get a second chance. Under CPLR 3042(d), a court may also grant relief under CPLR 3126. Under CPLR 3126, a court may order any remedy it finds “just.” A court may strike all or part of your pleading if you’ve failed to comply with the court’s order. A court may stay the action or proceeding until you comply with the court order. The most severe remedy is that a court may dismiss the action or enter a default judgment against a disobeying party.³³⁰

If you need more time to prepare your bill of particulars, ask for more time from the party who sent you the written demand. If that party agrees to give you more time, prepare a stipulation listing the time frame. If that party refuses to give you more time, move the court to extend your time to prepare your bill of particulars.

If you don’t sufficiently know the details to your case to prepare a bill of particulars, prepare a bill as completely as you can given your current knowledge. If a party is demanding information you don’t know, state in your bill of particulars that you don’t have that information. Answer the demand and state what information is missing and when you expect to obtain the information during disclosure. Once you’ve obtained the information, serve an amended or supplemental bill of particulars. For example, you might need to conduct an examination before trial (EBT) before you will know certain information to answer the demand. If that’s the situation, state that in your bill of particulars.

Amending and Supplementing a Bill of Particulars

Under CPLR 3042(b), you’re allowed to amend your bill of particulars one time as of right (no leave of court is needed) if you amend before the defendant files a note of issue.³³¹ If the defendant has already filed a note of issue, you’ll need leave of court to change the bill of particulars. Or you may get the other side to agree and stipulate that you may amend the bill. If you’ve already amended your bill of particulars and need to amend it again, you’ll need leave of court or the other side’s permission to amend. To determine whether to allow you to amend, a court will use the same standard under CPLR 3025(b), which deals with when you’d amend and supplement your pleadings by leave of court

In a personal-injury case, you may serve a supplemental bill of particulars as of right under CPLR 3043(b), but only “with respect to claims of continuing special damages and disabilities.” You may serve your supplemental bill even after the defendant filed the note of issue. Serve the supplemental bill of particulars at least 30 days before trial; don’t add new grounds or theories to the bill.

If you’re amending or supplementing your bill of particulars, you don’t need to rewrite the entire bill or to point out what’s different from the original bill.

If a...