SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

470 

CA 10-02471 

PRESENT: SMITH, J.P., CENTRA, PERADOTTO, GORSKI, AND MARTOCHE, JJ. 

 

WILLIAM J. MAYER AND LISA A. MAYER, 

PLAINTIFFS-APPELLANTS, 

V MEMORANDUM AND ORDER

HENRY HOANG, INDIVIDUALLY AND DOING BUSINESS 

AS HENRY’S NAILS, DEFENDANT-RESPONDENT. 

 

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL),

FOR PLAINTIFFS-APPELLANTS. 

COHEN & LOMBARDO, P.C., BUFFALO (JONATHAN D. COX OF COUNSEL), FOR

DEFENDANT-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Erie County (Diane Y.

Devlin, J.), entered October 25, 2010 in a personal injury action. 

The order, insofar as appealed from, granted the motion of defendant

to compel plaintiffs to provide a supplemental bill of particulars and

to compel a return deposition of plaintiff William J. Mayer. 

It is hereby ORDERED that the order so appealed from is

unanimously modified as a matter of discretion and on the law by

denying defendant’s motion with respect to a return deposition of

plaintiff in part, vacating the third ordering paragraph and

substituting therefor a directive that plaintiff submit to a further

deposition that is limited to questions concerning the June 2007 motor

vehicle accident and relevant questions deriving therefrom, in

accordance with 22 NYCRR 221.2, and as modified the order is affirmed

without costs. 

Memorandum: Plaintiffs commenced this Labor Law and common-law

negligence action seeking damages for injuries allegedly sustained by

William J. Mayer (plaintiff) when he fell from a ladder while removing

a light fixture from the exterior of Henry’s Nails, a business owned

by defendant. Contrary to plaintiffs’ contention, we conclude that

Supreme Court did not abuse its discretion in granting that part of

defendant’s motion seeking to compel plaintiffs to serve a

supplemental bill of particulars that included wage loss calculations

to be verified by plaintiff, subject to preclusion of a claim for any

such damages in the event of plaintiffs’ failure to comply with that

part of defendant’s motion (see CPLR 3042 [d]). 

We recognize that “ ‘[t]he purpose of a bill of particulars is to

amplify the pleadings, limit proof, and prevent surprise at trial; it
-2- 470 

CA 10-02471 

is not an evidence-gathering device’ ” (Khoury v Chouchani, 27 AD3d

1071, 1072). Nevertheless, we conclude that plaintiffs failed to

provide an adequate response to defendant’s demand for information

concerning plaintiff’s “time lost and loss of income sustained.” In

their bill of particulars, plaintiffs’ response thereto was that the

total amount of lost earnings was “unknown at the present time and

will be supplemented in the future.” Plaintiffs thereafter produced a

computer printout that purported to show plaintiff’s earnings from the

year 2000 through the year 2008, when the accident occurred. After

plaintiff’s deposition and in response to a follow-up letter from

defendant, plaintiffs refused to provide any additional information

concerning lost earnings, stating merely that the bill of particulars

would be supplemented “in accordance with the requirements of the

CPLR.” The record reflects, however, that plaintiffs had more than

sufficient time to provide a calculation of plaintiff’s lost wages,

particularly in light of the fact that plaintiff had already returned

to his “normal amount of activities” at the time of his deposition in

2010, and the fact that correspondence from plaintiffs’ attorney

following plaintiff’s deposition did not indicate that plaintiffs

lacked any information needed to calculate lost wages (cf. Felock v

Albany Med. Ctr. Hosp., 258 AD2d 772, 774). Moreover, defendant

requested information only and not evidentiary material or expert

proof. We further conclude that the court properly ordered that the

supplemental bill of particulars be verified by plaintiff inasmuch as

the record establishes that plaintiff’s wife is not sufficiently

“acquainted with the facts” within the meaning of CPLR 3020 (d).

Plaintiffs further contend that the court erred in granting that

part of defendant’s motion seeking to compel plaintiff to submit to a

return deposition and “to answer all questions put to him including

any questions previously asked at the prior deposition as well as

questions regarding any of the issues inquired of by” defendant’s

attorney. Even assuming, arguendo, that defendant is correct that

such part of the order is not appealable as of right (see Roggow v

Walker, 303 AD2d 1003, 1003-1004; Presti v Schalck, 26 AD2d 793; Brown

v Golden, 6 AD2d 766), we exercise our discretion to deem the notice

of appeal with respect to that part of the order to be an application

pursuant to CPLR 5701 (c) for permission to appeal, and we grant such

permission (see Roggow, 303 AD2d at 1004). On the merits, we agree

with plaintiffs that the court abused its discretion in imposing that

broad requirement. Defendant took issue with only five of the

questions that plaintiff refused to answer, and defendant concedes in

his brief on appeal that plaintiff essentially answered two of those

questions, which concerned whether plaintiff smokes cigarettes. With

respect to the remaining questions, we conclude that plaintiff

properly refused to answer questions concerning whether defendant

supplied “any defective, unsafe or improper devices or materials which

caused [plaintiff’s] fall” or whether the work area appeared “to be

unreasonably dangerous.” It is well settled that a plaintiff at a

deposition may not “be compelled to answer questions seeking legal and

factual conclusions or questions asking him [or her] to draw

inferences from the facts” (Lobdell v South Buffalo Ry. Co., 159 AD2d

958; see Barber v BPS Venture, Inc., 31 AD3d 897). Plaintiff also

properly refused to answer the question whether he had “a calculation
-3- 470 

CA 10-02471 

as to any lost wages that [he] would claim as a result of this

incident” inasmuch as such question primarily seeks a legal conclusion

(see generally Barber, 31 AD3d 897; Lobdell, 159 AD2d 958). Further,

a review of plaintiff’s deposition transcript reflects that plaintiff

properly answered all other fact-based questions concerning his lost

wages (see Schwartz v Marien, 40 AD2d 1078).

We conclude, however, that the court properly granted that part

of defendant’s motion seeking to require plaintiff to answer questions

concerning his June 2007 motor vehicle accident. At his deposition,

plaintiff was directed by his attorney not to answer the question

whether he “ever ma[de] a claim for bodily injury following a motor

vehicle accident in June of 2007.” Contrary to plaintiffs’

contention, that question does not implicate the physician-patient

privilege inasmuch as it does not request information concerning

doctor-patient communications or medical diagnosis or treatment (see

CPLR 4504 [a]; see generally Carter v Fantauzzo, 256 AD2d 1189, 1190). 

Further, plaintiff alleges that, as a result of the fall, he injured

his back, hip, groin, pelvis, and elbow, areas that are commonly

injured in motor vehicle accidents, and thus the question was

reasonably calculated to lead to evidence that is “material and

necessary” to the defense of the action (CPLR 3101 [a]; see generally

Orlando v Richmond Precast, Inc., 53 AD3d 534; Rega v Avon Prods.,

Inc., 49 AD3d 329, 330). We therefore modify the order by denying

defendant’s motion with respect to a return deposition in part,

vacating the third ordering paragraph and substituting therefor a

directive that plaintiff submit to a further deposition that is

limited to questions concerning the June 2007 motor vehicle accident

and relevant questions deriving therefrom, in accordance with 22 NYCRR

221.2.

Entered: April 29, 2011 Patricia L. Morgan

Clerk of the Court