New York, N.Y. (May 6, 2020)  - On April 30, 2020, the New York's Appellate Division, First Department, issued a decision in Silber v. 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. 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.

In the Silber action, the defendant, Sullivan Properties, made a post-Note of Issue motion for summary judgment. 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. 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. 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 trial court denied the plaintiff's cross-motion to serve an Amended Bill of Particulars. On appeal, the Appellate Division affirmed. 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.

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. 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.

Oftentimes, Supplemental or Amended Bills of Particulars are served late in a lawsuit. A "Supplemental" Bill of Particulars is appropriately served when it simply expounds on previously disclosed injuries or previously disclosed damages resulting from an accident. See  CPLR 3043(b). An "Amended" Bill of Particulars is appropriately served when new injuries, new claims, or new theories of liability are asserted. Further to CPLR 3042(b), a party is permitted to amend a Bill of Particulars once by right prior to the Note of Issue. While leave to serve an Amended Bill of Particulars is liberally granted when discovery is open, when an Amended (or improperly denominated "Supplemental") Bill of Particulars is served post-Note of Issue or on the eve of trial, a court will evaluate the proposed Amended Bill of Particulars in a more discreet, circumspect, prudent, and cautious manner.

The lesson learned from Silber is that a vigilant examination of a post-Note of Issue Bill of Particulars must be made. If new claims, injuries, statutes, or theories of liability are asserted, then the Bill of Particulars must be denominated as an "Amended" Bill of Particulars and must be served with an affidavit or other evidence offering a reasonable excuse for why the proposed Amended Bill of Particulars is being served at such a late point in the action. Absent such supporting evidence, the Amended Bill of Particulars can be stricken, thereby limiting the plaintiff's claims and recovery at trial.

Originally published May 6, 2020

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.