Further to CPLR 3042(b), a party is permitted to amend a Bill of Particulars once by right prior to the Note of Issue. An “Amended” Bill of Particulars is appropriately served when new injuries, new claims, or new theories of liability are asserted.
A “Supplemental” Bill of Particulars is appropriately served when it simply expounds on previously disclosed injuries or previously disclosed damages resulting from an accident. Oftentimes, Supplemental or Amended Bills of Particulars are served late in a lawsuit. Nevertheless, in 2015, CPLR §3212(b) was amended to specifically state that a court “may not decline to consider an expert affidavit at summary judgment merely because of a party’s failure to provide a CPLR 3101(d) disclosure for that expert.” New York case law interpreting that language repeatedly has abided by the plain language of CPLR 3212(b) and no longer precludes consideration of an affidavit from a previously undisclosed expert submitted in support of, or opposition to, a motion for summary judgment. The Silber court did not address the issue of whether the expert who submitted an affidavit on the plaintiff’s behalf had been disclosed prior to the plaintiff filing his opposition papers in response to the defendant’s motion for summary judgment.
CPLR BILL OF PARTICULARS 3042 TRIAL
Significantly, in affirming the trial court’s denial of the cross-motion, the First Department noted that the plaintiff’s proposed Amended Bill of Particulars raised a new theory of liability never previously alleged and was an “untimely substantive addition to the theory of the case.” The appellate court also made particular note of the fact that the plaintiff failed to submit with his cross-motion an affidavit or other evidence establishing a reasonable excuse for moving to amend the Bill of Particulars at such a late point in the action.
On appeal, the Appellate Division affirmed. The trial court denied the plaintiff’s cross-motion to serve an Amended Bill of Particulars. Accordingly, the plaintiff cross-moved for permission to file an Amended Bill of Particulars one month after the plaintiff had originally opposed the defendant’s motion for summary judgment three months after Note of Issue had been filed and three years after the lawsuit began. The plaintiff also submitted a Supplemental Bill of Particulars with the opposition papers, which the defendants rejected, claiming that the plaintiff’s new Bill of Particulars had to be served as an “Amended” Bill of Particulars rather than as a Supplemental Bill of Particulars.
CPLR BILL OF PARTICULARS 3042 CODE
In opposition to that motion, the plaintiff served papers that included an affidavit from an engineering expert referencing numerous building code violations never previously alleged in the plaintiff’s original Bill of Particulars.
In the Silber action, the defendant, Sullivan Properties, made a post-Note of Issue motion for summary judgment. In New York, a Bill of Particulars is a pleading that is substantively equivalent to responses to interrogatories and typically details in specificity a plaintiff’s injuries, the defendant’s alleged misconduct, and the specific statutes and/or code violations that the defendant is alleged to have violated. Sullivan Properties, L.P., affirming the trial court’s denial of a plaintiff’s post-Note of Issue motion to file an Amended Bill of Particulars, which charged the defendant with violating a section of the building code that had never been previously alleged. (May 6, 2020) - On April 30, 2020, the New York’s Appellate Division, First Department, issued a decision in Silber v. Amended Bill of Particulars: If Challenged, New York Courts Will Closely Examine Such Filings Post-Note of Issue
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