In New York practice, the “Bill of Particulars” is a widely-used device to obtain more detail – “particulars” – about a legal claim (either a plaintiff’s affirmative claims, or a defendant’s affirmative defense(s)).
Technically, even though the Bill of Particulars (referred to as a “BP” by New York litigation regulars) is not a “discovery” device, but rather an “amplification of a pleading.”
The relevant provisions of the New York Civil Practice Law and Rules (CPLR) governing the bill of particulars are CPLR 3041-3044.
CPLR 3042 (titled “Procedure for bill of particulars”) provides:
(a) Demand. A demand for a bill of particulars shall be made by serving a written demand stating the items concerning which particulars are desired. Within thirty days of service of a demand for a bill of particulars, the party on whom the demand is made shall serve a bill of particulars complying with each item of the demand, except any item to which the party objects, in which event the reasons for the objection shall be stated with reasonable particularity. The assertion of an objection to one or more of the items in the demand shall not relieve the party on whom the demand is made from the obligation to respond in full within thirty days of service of the demand to the items of the demand to which no objection has been made.
(b) Amendment. In any action or proceeding in a court in which a note of issue is required to be filed, a party may amend the bill of particulars once as of course prior to the filing of a note of issue.
(c) Failure to respond or to comply with a demand. If a party fails to respond to a demand in a timely fashion or fails to comply fully with a demand, the party seeking the bill of particulars may move to compel compliance, or, if such failure is willful, for the imposition of penalties pursuant to subdivision (d) of this rule.
(d) Penalties for refusal to comply. If a party served with a demand for a bill of particulars willfully fails to provide particulars which the court finds ought to have been provided pursuant to this rule, the court may make such final or conditional order with regard to the failure or refusal as is just, including such relief as is set forth in section thirty-one hundred twenty-six of this chapter.
(e) Service of improper or unduly burdensome demands. If the court concludes that the demand for particulars, or a part thereof, is improper or unduly burdensome, in addition to vacating or modifying the demand, the court may make such order with regard to the improper or unduly burdensome demand as is just.
CPLR 3043 pertains specifically to bills of particulars in personal injury actions. It provides that the following particulars “may be required”:
(1) The date and approximate time of day of the occurrence;
(2) Its approximate location;
(3) General statement of the acts or omissions constituting the negligence claimed;
(4) Where notice of a condition is a prerequisite, whether actual or constructive notice is claimed;
(5) If actual notice is claimed, a statement of when and to whom it was given;
(6) Statement of the injuries and description of those claimed to be permanent, and in an action designated in subsection (a) of section five thousand one hundred four of the insurance law, for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state, in what respect plaintiff has sustained a serious injury, as defined in subsection (d) of section five thousand one hundred two of the insurance law, or economic loss greater than basic economic loss, as defined in subsection (a) of section five thousand one hundred two of the insurance law;
(7) Length of time confined to bed and to house;
(8) Length of time incapacitated from employment; and
(9) Total amounts claimed as special damages for physicians’ services and medical supplies; loss of earnings, with name and address of the employer; hospital expenses; nurses’ services.
CPLR 3043(a).
CPLR 3043 provides further that
A party may serve a supplemental bill of particulars with respect to claims of continuing special damages and disabilities without leave of court at any time, but not less than thirty days prior to trial. Provided however that no new cause of action may be alleged or new injury claimed and that the other party shall upon seven days notice, be entitled to newly exercise any and all rights of discovery but only with respect to such continuing special damages and disabilities.
Accordingly, there is a distinction between an “amended” bill of particulars and a “supplemental” bill of particulars. Typically, a plaintiff will serve a “supplemental” bill of particulars to allege further medical treatment to previously-identified body parts alleged to be injured. An “amended” bill of particulars would be used where, for example, a plaintiff seeks to assert a new theory of liability.
Since bills of particulars are not “disclosure” devices, it is not uncommon for the responding party to object to a Demand for a Verified Bill of Particulars on the ground that the demand seeks “evidentiary material” that is “more properly the subject of a deposition” and, therefore, not a proper subject of a bill of particulars.
Finally, CPLR 3044 provides that “[i]f a pleading is verified, a subsequent bill of particulars shall also be verified” and that “[a] bill of particulars of any pleading with respect to a cause of action for negligence shall be verified whether such pleading be verified or not.”