Twiddy v. Standard Marine Transport Services, Inc.

• Decision Date: 19 June 1990
• Citation: Twiddy v. Standard Marine Transport Services, Inc., 556 N.Y.S.2d 622, 162 A.D.2d 264 (N.Y. App. Div. 1990)
• Parties: Ralph V. TWIDDY, Jr. et al., Plaintiffs-Respondents, v. STANDARD MARINE TRANSPORT SERVICES, INC., et al., Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 622

556 N.Y.S.2d 622

162 A.D.2d 264

Ralph V. TWIDDY, Jr. et al., Plaintiffs-Respondents, v. STANDARD MARINE TRANSPORT SERVICES, INC., et al Defendants-Appellants.

Supreme Court, Appellate Division First Department.

June 19, 1990.

K. Heller, for plaintiffs-respondents.

H. Issler, New York City, for defendants-appellants.

Before KUPFERMAN, J.P., and SULLIVAN, CARRO and MILONAS, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Helen Freedman, J.), entered on or about October 6, 1989, which, inter alia, denied that part of defendants' motion, pursuant to CPLR 3042(a), seeking to vacate plaintiffs' demand for a verified bill of particulars with respect to defendants' affirmative defenses and directed defendants' compliance therewith, unanimously modified, on the law and on the facts and in the exercise of discretion, to the extent of striking items numbered 1, 5, 9, 13, 17, 21, 25, 29 and 33 of said demand insofar as they seek to elicit those statutes, regulations, citations or other legal authorities relied upon by defendants in their affirmative defenses and, except as thus modified, affirmed, without costs or disbursements.

Plaintiff, seriously injured in an explosion aboard a barge, has sued defendants, alleging, inter alia, negligence. In their answer, defendants asserted a number of affirmative defenses, as to which plaintiff thereafter served a demand, containing 36 enumerated requests, for a verified bill of particulars. Defendants moved to vacate the demand, alleging, essentially, that it is overbroad and improper since it seeks information which is generally obtained through discovery and not a demand for a bill of particulars. The IAS court directed defendants to serve a bill of particulars, as demanded, on the affirmative defenses.

The purpose of a bill of particulars is to amplify the pleadings, limit the proof and prevent surprise at trial. (Palazzo v. Abbate, 45 A.D.2d 760, 357 N.Y.S.2d 128.) While a bill of particulars is not an evidence-producing device (id.), the rule is not an inflexible one. (See, e.g., Hayes v. Utica Mut. Ins. Co., 24 A.D.2d 829, 264 N.Y.S.2d 142; see, also, Siegel, Practice Commentary, McKinney's Consolidated Laws of New York, Book 7B, CPLR C3041:2, at p. 623.)

The information sought here by the demand for a bill of particulars is undisputably information which normally would be obtainable through discovery. There is, however, no showing that defendants will suffer any prejudice by...