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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. 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. On appeal, the Appellate Division affirmed. The trial court denied the plaintiff’s cross-motion to serve an Amended 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 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. 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. In the Silber action, the defendant, Sullivan Properties, made a post-Note of Issue motion for summary judgment. 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. 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.
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(May 6, 2020) - On April 30, 2020, the New York’s Appellate Division, First Department, issued a decision in Silber v. Amended Bill of Particulars: If Challenged, New York Courts Will Closely Examine Such Filings Post-Note of Issue Where there is a question whether or not the State has adequately disclosed the necessary information, all doubts should be resolved in favor of requiring disclosure so that the defendant is informed of the facts necessary to mount a complete defense.266Ģ63. However, the State is not required to disclose its theories or the manner in which it believes the crime was committed.265 A defendant is entitled to be informed of the specific dates and/or, where relevant, time periods in which the events giving rise to the charge. The court must balance the need to insure that the accused possesses the information necessary to prepare a complete defense against the government’s right not to disclose completely the detailed evidentiary facts and theories that is expects to prove at trial.264Ī criminal defendant is entitled to have the government state the central facts that will enable the defendant to conduct an investigation of the events giving rise to the charge. The availability and scope of a bill of particulars, and the sufficiency of the response thereto, are matters within the discretion of the trial court.
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The bill of particulars is designed (i) to inform the defendant of the specific nature of the charges where necessary to prepare a complete defense (ii) to prevent or minimize the possibility of a prejudicial surprise at trial and (iii) to protect against double jeopardy prosecutions.263 A criminal defendant may request a bill of particulars when the indictment fails to notify the defendant of the elements and the essential facts of the specific charges.