Claimant's motion in bailment claim for a further bill of particulars is granted with respect to defenses alleging claimant's comparative negligence and/or culpable conduct and third-party negligence and denied with regard to defenses alleging limitation of claimant's recovery pursuant to lost property regulations and discretionary governmental function immunity.
|Claimant(s):||GLASCO WRIGHT, #90-A-6050|
|Claimant short name:||WRIGHT|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||GLASCO WRIGHT
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
By: Glenn C. King, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||June 24, 2021|
|See also (multicaptioned case)|
Claimant moves to compel a further bill of particulars regarding the first four (4) defenses in defendant's answer to claimant's action alleging loss of inmate personal property (Court of Claims Act 10 ).
Defendant opposes the claimant's motion.
Defendant's four challenged defenses allege, respectively, claimant's comparative negligence and/or culpable conduct, that third-party negligence caused the alleged loss, limitation of claimant's recovery pursuant to lost property regulations and finally, discretionary governmental function immunity.
Initially, the Court rejects defendant's assertion that claimant's motion be denied because claimant failed to serve the motion on defendant. The record shows that the defendant has fully considered and briefed the issues raised in the motion.
The Court also rejects defendant's assertion that, based upon the Court's prior Decision and Order in this proceeding, the "Equitable Doctrine of Collateral Estoppel" precludes claimant's motion. The Court previously denied claimant's CPLR 3211 (b) motion to dismiss the challenged four (4) defenses because the first three stated defenses involved "factual issues that must await a trial for resolution." The Court found that claimant had not shown that those three challenged defenses lacked merit as a matter of law. The Court further found that discretionary governmental immunity would be a viable defense to claimant's cause of action alleging that "[d]efendants failed to properly investigate the loss of Personal Property Claim" (Wright v The State of New York, UID #2019-041-014, Claim No. 131663, Motion No. M-93483 [Ct Cl, Milano, J., filed May 1, 2019).
Estoppel does not apply because the issues in the prior dismissal motion are not identical or even analogous to the issues in the present motion for further particulars as to the defendant's defenses. In the prior dismissal motion the law required that the allegations contained in the challenged defenses "must be accepted as true on a motion to strike" and further required that where the "claimant failed to conclusively show that the defenses lacked merit" as a matter of law, the motion must be denied (Suarez v State of New York, 60 AD3d 1243 [3d Dept 2009]).
Contrarily, the defendant bears the burden of proving his stated defenses of comparative or third-party negligence at trial and, consequently, the burden of providing particulars as to those stated defenses ("In a negligence action, the [claimant], upon appropriate demand, may be entitled to a bill of particulars on an affirmative defense, such as comparative negligence" [84 NY Jur 2d Pleading § 300]).
Turning to the merits of claimant's present motion, the claim was served on June 11, 2018 and alleges that defendant lost or destroyed certain of claimant's criminal trial transcripts. Defendant's answer, including the four (4) challenged defenses, was served on or about July 18, 2018.
Claimant served a demand for a verified bill of particulars as to each of the four (4) defenses on March 17, 2021. Defendant served its verified bill of particulars on April 19, 2021, stating that with respect to the first two (2) defenses that:
"Defendant cannot respond to this demand at this point in discovery. If, upon further discovery, it becomes clear that this defense is without merit, defendant will voluntarily withdraw said defense."
The claim has been pending for over three (3) years and defendant has had adequate time to investigate its alleged defenses as to the purported negligence of claimant or a third party in causing claimant's alleged property loss.
Defendant is ordered to provide the demanded particulars as to claimant's comparative negligence and/or culpable conduct and as to third-party negligence within ninety (90) days after the filing date of this Decision and Order or defendant is precluded from offering any evidence as to those defenses at trial.
The Court finds, after careful review, that defendant's verified bill of particulars adequately and lawfully responded to claimant's demand for particulars as to its defenses alleging the limitation of claimant's recovery pursuant to lost property regulations and as to its defense of discretionary governmental function immunity. Claimant's motion for a further bill of particulars as to those defenses is denied.
Finally, the Court notes that claimant has withdrawn his cause of action alleging that "[d]efendants failed to properly investigate the loss of Personal Property Claim."
The claimant's motion is, accordingly, granted in part and denied in part, as set forth above.
June 24, 2021
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Claimant's Notice of Motion for Further Bill of Particulars, filed May 10, 2021;
2. Affidavit of Glasco Wright, sworn to May 6, 2021, and attached exhibits;
3. Affirmation in Opposition of Glenn C. King, dated June 1, 2021, and attached exhibits, including affidavit of Debra L. Mantell, sworn to June 1, 2021;
4. Claimant's Reply Affidavit, sworn to June 7, 2021.