Harris v Ariel Transp. Corp.

Harris v Ariel Transp. Corp. 2007 NY Slip Op 01407 [37 AD3d 308] February 20, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 11, 2007

Selena S. Harris, Respondent,
v
Ariel Transportation Corp. et al., Appellants, et al., Defendant.

—[*1] DeBrosse & Studley, LLP, Jamaica Estates (Mitchell J. Studley of counsel), for appellants. Popick, Rutman & Jaw, LLP, New York (Rick J. Rutman of counsel), for respondent.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered March 2, 2006, which denied the motion by defendants Ariel Transportation and Diop to compel service of a more responsive bill of particulars, or for an order of preclusion, unanimously affirmed, without costs.

Plaintiff alleges that she sustained personal injury in a motor vehicle accident. In response to the demand by Ariel and Diop for a bill of particulars as to the nature of her permanent injury, plaintiff alleged that she sustained cervical bulges at C4-C5, C5-C6 and C6-C7, but she also stated that these bulges preexisted the accident. Ariel and Diop moved to compel a further response to their demand, seeking a specific statement as to the injury sustained, i.e., whether the bulges were caused or simply aggravated by the accident.

"The purpose of a bill of particulars is to amplify the pleadings, limit the proof and prevent surprise at trial" (Twiddy v Standard Mar. Transp. Servs., 162 AD2d 264, 265 [1990]). It need not set forth a matter that is evidentiary in nature, which is more appropriately obtained through depositions and expert disclosure (see Felock v Albany Med. Ctr. Hosp., 258 AD2d 772, 773 [1999]). Ariel and Diop seek evidentiary matter not within the scope of a bill of particulars. [*2]Plaintiff's response apprises defendants of the nature of the injury (CPLR 3043 [a] [6]), which is sufficient for their defense of the claim. Concur—Tom, J.P., Saxe, Sweeny, Malone and Kavanagh, JJ.