Little v. State

• Citation: 100 Misc.2d 57,418 N.Y.S.2d 289
• Decision Date: 21 June 1979
• Docket Number: No. 61426,61426
• Parties: Marie LITTLE, Claimant, v. The STATE of New York, State University of New York and State University at Stony Brook, Defendants. Claim
• Court: New York Court of Claims

Page 289

418 N.Y.S.2d 289

100 Misc.2d 57

Marie LITTLE, Claimant, v. The STATE of New York, State University of New York and State University at Stony Brook, Defendants.

Claim No. 61426.

Court of Claims of New York.

June 21, 1979.

Bloom & Mintz, by Joel M. Mintz, New York City, for claimant.

Robert Abrams, Atty. Gen., Kane & Mahon, Hauppauge, of counsel by Peter A. Canevari, New York City, and Edmund J. Kane, Hauppauge, for defendants.

OPINION

GERARD M. WEISBERG, Judge.

Claimant has moved for preclusion predicated upon defendants' failure to comply with a demand for a bill of particulars of three affirmative defenses set forth in the answer. Defendants have opposed the motion contending that a bill of particulars of affirmative defenses is not obtainable in the Court of Claims by way of a mere demand, but rather that a formal motion is a necessary prerequisite thereto.

The defendants have raised a novel question. Its resolution involves a determination as to (1) whether, insofar as is here relevant, there is any distinction between the adjective law of the Supreme Court and that of the Court of Claims; and (2) whether a bill of particulars is sufficiently similar to a disclosure device to bring it within subdivision (f) of section 3102 of the Civil Practice Law and Rules.

According to the leading study of this Court "(i)n 1906, Section 265 of the Code of Civil Procedure was amended to provide that, except as otherwise prescribed, the Court of Claims practice should conform to that in the supreme court." (McNamara, The Court of Claims: Its Development and Present Role in the Unified Court System, 40 St. John's L.Rev. 1, 8 (1965).) This rule has continued up until the present time and is now found in substantially the same form in subdivision 9 of section 9 of the Court of Claims Act.

The defendants contend that a demand for a bill of particulars is a disclosure device and is therefore governed by Article 31 of the Civil Practice Law and Rules. Subdivision (f) of section 3102 thereof provides that disclosure by the State may be obtained only by an order. This implies that in such instances a formal motion is necessary. However, subdivision (a) of section 3102 defines disclosure devices, but nowhere mentions a demand for a bill of particulars.

The reason for this omission is clear. Such a demand is intended to serve as an amplification of the pleadings, and not as a method for obtaining evidence. (Belott v. State of New York, 40 A.D.2d 729, 336 N.Y.S.2d 468; Holland v. Baker, 30 A.D.2d 136, 290 N.Y.S.2d 651.)

Thus, bills of particulars are governed by and the practice with respect thereto is found in Article 30. The procedure in the Supreme Court is prescribed by Rule 3042 which provides in relevant part that a bill may be obtained by serving a written notice stating the items concerning...