Purpose of a Bill of Particulars
A BOP's essential uses include:
- Amplifying a pleading by giving the opposing party a detailed understanding of the claim or defense being particularized. The response must, clarify unusual, conclusory or general allegations within the pleading (Jones v. LeFrance Leasing Ltd. P'ship, 61 AD3d 824 [2d Dept 2009]).
- Limiting the proof and preventing surprise at trial.
- Providing a copy of items on an account alleged in a pleading (CPLR 3041).
A bill of particulars is practically always demanded in personal injury actions, because those types of actions are very fact specific. Bills of particulars are demanded much less frequently in other contexts, although they are useful in any type of action where a pleading contains conclusory allegations with little factual explanation and support.
What Courts are BOP's available in?
- The New York supreme courts (trial level).
- The Commercial Division parts of the supreme courts.
- The county courts.
- The district courts on Long Island (NY Uniform District Court Act § 1101(a)).
- The justice courts (NY Uniform Justice Court Act § 1101(a)).
- City courts outside of New York City (NY Uniform City Court Act § 1101(a)).
- New York City Civil Court (N.Y. City Civil Court Act § 1101(a)).
- Family courts, when appropriate and not covered by the Family Court Act and Family Court Rules (NY Family Court Act § 165(a)).
- The court of claims and surrogates' courts, with some modifications (22 NYCRR §§ 206.5(c) and 207.23).
The BOP is typically unavailable in:
- Small claims actions
- Administrative proceedings
Demanding and Receiving a Bill of Particulars
The process of demanding and receiving a bill of particulars is governed by CPLR 3042. The party seeking the bill of particulars first serves a written demand on the opposing party, stating the items for which particularization is sought (CPLR 3042[a]). For example, if a party alleges the affirmative defense of statute of limitations, without any supporting facts, the demand might read: "State with particularity the facts that support your First Affirmative Defense that the statute of limitations has expired."
Important to note here, as with other demands served by regular mail, five days are added to the receiving party's time to respond if mailed from within New York state, six days if mailed from any other state (CPLR 2103[b]).
In its response, the recipient of the demand must set out the:
- Particulars (meaning factual information) for each demand to which it does not object.
- Reasons for not serving responses to the demands to which it does object.
Who May Be Required to Supply a Bill of Particulars
A party served with a demand for a bill of particulars is only required to particularize allegations for which they have the burden of proof. As a result, a party must provide on demand particulars concerning matters alleged in that party's pleading, as follows:
- The plaintiff's causes of action in the complaint.
- The defendant's counterclaims, crossclaims and affirmative defenses found in the answer.
- A plaintiff's affirmative defenses found in its reply to a counterclaim.
- Third-party claims against third-party defendants.
The information that can be requested in a demand for a bill of particulars is often very fact specific, with little absolute rules. The only real exception is the personal injury lawsuit.
Our office loves using the bill of particulars device instead of the request for interrogatories. When we represent plaintiffs, it is an easy way to whittle down irrelevant affirmative defenses. As opposing counsel will often withdraw affirmative defenses where they can't allege adequate facts, or those affirmative defenses will be dismissed on motion.
As defense counsel in a civil action, the bill of particulars is a way to find out more facts about a plaintiff's complaint and do a more thorough investigation.