FOR IMMEDIATE RELEASE
August 1, 2023
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Alison Arden Besunder
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Benjamin Blum
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Seeking Compliance with a Deficient Bill of Particulars: Understanding the Proper Method
When engaging in legal proceedings, parties often require specific details and information from their opponents to effectively prepare their case. In civil litigation, a bill of particulars serves as a crucial document that outlines the specific facts and details supporting the opposing party’s claims or defenses. However, what can be done when a bill of particulars is deficient or fails to provide the necessary particulars? This blog post discusses how to procure compliance with a deficient bill of particulars.
The Role of CPLR 3126
In New York, the proper mechanism for ensuring compliance with a demand for a bill of particulars is governed by the Civil Practice Law and Rules (CPLR) 3126, per CPLR 3042(d). CPLR 3126 outlines the enforcement measures that can be taken when a party fails to comply with a bill of particulars.
Enforcement Measures
If a party willfully fails to provide the requested particulars in response to a bill of particulars, the court has the authority under CPLR 3126 to issue a final or conditional order as it deems just. This order may include various forms of relief as outlined in Section 3126. Two common forms of relief include:
Striking the non-complying party’s pleading: The court may order the striking of the non-complying party’s pleading, which essentially removes their legal document from consideration. This can be a significant consequence, as it severely hampers the non-complying party’s ability to support their claims or defenses.
Order of preclusion: Another potential relief measure is the issuance of an order of preclusion. This order prevents the non-complying party from introducing certain evidence or making specific arguments related to the deficient bill of particulars. Such an order can substantially limit the non-complying party’s ability to present their case effectively.
Applicability of CPLR 3042(d)
It’s important to note that CPLR 3042(d) does not directly provide for a motion to compel compliance with a deficient bill of particulars, as provided by CPLR 3124. However, based on the language of CPLR 3042(d), it appears that the court does have the discretion to issue an order compelling the non-complying party to provide the requested responses. The court’s authority to do so stems from its powers under CPLR 3126 to make an order “as it deems just.”
When faced with a deficient bill of particulars, seeking compliance requires understanding the proper legal mechanisms. CPLR 3126, in conjunction with CPLR 3042(d), serves as the appropriate framework for ensuring compliance. By utilizing the enforcement measures outlined in CPLR 3126, such as striking the non-complying party’s pleading or issuing an order of preclusion, the court can uphold the integrity of the legal process and ensure that parties have access to the necessary particulars for their case.
Goetz Fitzpatrick LLP has been offering clients insightful solutions throughout the New York Metropolitan area since 1967. The firm provides its clients with expertise in the areas of Construction and Real Estate, Trusts & Estates Administration & Litigation, Commercial Litigation, Corporate, Bankruptcy, and Labor & Employment. The firm’s office is located at One Penn Plaza, Suite 3100, New York, NY 10119, Telephone 212 695 8100, [email protected], www.goetzfitz.com. You can learn more about Goetz Fitzpatrick on: LinkedIn | X (Twitter) | Soundcloud | YouTube | Facebook | Instagram
