v Apex Discount Corp., 18 A.D.2d 1073, elements of contract pleaded as affirmative defense Practice Commentary C3041:6, McKinney's Cons Laws of NY, Book 7B, CPLR 3041 3 Weinstein-Korn-Miller, N Y Civ Prac, par 3041.10). Co., 37 A.D.2d 1008, affirmative defense of truth and privilege in a libel action Grand Mach. There are numerous cases in which defendants have been required to furnish bills of particulars on matters which they have pleaded affirmatively (see, e.g., Bounds v Mutual of Omaha Ins. 171 3 Weinstein-Korn-Miller, N Y Civ Prac, par 3041.09, p 30-715) respecting issues on which the person from whom the bill is demanded bears the burden of proof (3 Weinstein-Korn-Miller, N Y Civ Prac, par 3041.10). Defendant opposes the motion by stating that his affirmative defense was interposed pursuant to CPLR 1412 and argues that "Section 1412 clearly does not require service of a bill of particulars." He further asserts that "plaintiff has not shown any prejudice or special circumstances requiring the service of a separate, distinct bill of particulars on a culpable conduct defense." Finally, he asserts that the fact that the Legislature did not amend CPLR 3041 - 3043 when CPLR 1412 was enacted is further evidence of the fact that no bill of particulars is required in this case.ĭefendant's assertions are contrary to the well-developed principle of law which holds that a bill of particulars may be demanded by any party (CPLR 3041 Marcel-Tucker-Cook Co. Set forth each and every act of the Plaintiff, including date, time, place and pertinent details, alleged to constitute the assumption of risk on the part of the Plaintiff."ĭefendant failed to answer plaintiff's demand and plaintiff now moves for an order pursuant to CPLR 3042 (subd ) precluding the defendant from offering evidence at trial in support of the affirmative defense. Set forth each and every act of the Plaintiff, including date, time, place and pertinent details, alleged to constitute the contributory negligence on the part of the Plaintiff. Set forth each and every act alleged to be the culpable conduct of the Plaintiff including date, time, place and pertinent details of each of the specific acts. Defendant's answer contained the following affirmative defense: "Any damages sustained by the plaintiff were caused by the culpable conduct of the plaintiff including contributory negligence or assumption of risk, and not by the culpable conduct or negligence of this (these) answering defendant(s)."įollowing the joinder of issue, plaintiff served defendant with a demand for a verified bill of particulars respecting the affirmative defense. In the instant case, plaintiff commenced an action for personal injuries based upon the alleged negligence of the defendant. CPLR 1412 declares that, contrary to prior law "culpable conduct" is an affirmative defense which must be "pleaded and proved by the party asserting the defense". Thus, a plaintiff found guilty of "culpable conduct" is not absolutely banned from recovering damages, but his or her recovery is diminished "in the proportion which the culpable conduct attributable to the claimant * * * bears to the culpable conduct which caused the damages" (CPLR 1411). The court answers this question in the affirmative.ĬPLR 1411 eliminates the common-law bar to recovery for personal injury plaintiffs found guilty of contributory negligence or assumption of risk and replaced this with what is sometimes called comparative negligence. That question is whether a defendant in an action to recover damages for personal injury may be required to serve a bill of particulars respecting the newly created affirmative defense of "culpable conduct" (CPLR 1412). This seemingly routine motion for an order of preclusion raises an interesting question respecting the ramifications of the recently enacted CPLR article 14A (CPLR 1411 - 1413).
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