Summary
In D'Onofrio v. Davis, 14 A.D.2d 960 (3rd Dep't, 1961) in response to a demand for a statement of injuries, instead of describing the injures, plaintiff referred defendant to a medical report.
Summary of this case from Stewart v. FellingerOpinion
November 16, 1961
Appeal by defendant from so much of an order of the Supreme Court at Special Term as denied in part his motion for a further bill of particulars in an automobile negligence action. Pursuant to demand of defendant served with his answer, plaintiffs served a bill of particulars. Defendant then made the motion here involved for a further bill of particulars. The court at Special Term granted the motion in part but denied the motion as to items "5" and "6" in the demand. Defendant's original demand required plaintiffs to furnish: "5. Statement and description of the injuries alleged to have been sustained. 6. Specifically indicate which injuries are claimed to be permanent." Plaintiffs' response to the above was as follows: "5. Please refer to medical report of Dr. Samuel L. Russell dated May 16, 1960, and October 13, 1960, forwarded to the attorney for the plaintiff, which said medical report was photostated by an agent of the defendant. 6. Plaintiff is still suffering from the injuries above set forth and will continue to so suffer for an indeterminate period of time, and verily believes that all of the foregoing will be permanently disabling except those of a superficial nature." We decline to approve of such an evasive and unconventional response to a demand for particulars. The purpose of a bill of particulars is to limit proof at the trial. Defendant is entitled to know, over the plaintiffs' own verification, precisely what the plaintiffs will claim on the trial. It is not enough to simply "refer" defendant to some report made by another. Moreover, the only satisfactory response to item "6" is the verified statement of plaintiffs naming the injuries claimed to be permanent. It is not enough to say, "all * * * except those of a superficial nature." This motion and this appeal could have been avoided if the plaintiffs had simply complied with the demand in accordance with the conventional practice, and in the interest of orderly practice and procedure, we think the plaintiffs should have done so. Order, insofar as appealed from, reversed, with $10 costs, and the motion granted. Bergan, P.J., Coon, Gibson, Reynolds and Taylor, JJ., concur.