Gardens v. Eldredge, Fox & Porretti, LLP

Appeal from an order of the Supreme Court, Ontario County (Kenneth R. Fisher, J.), entered May 15, 2007. The order, among other things, granted defendants’ motion to compel plaintiff to provide a complete response to defendants’ supplemental CPLR article 31 demands. It is hereby ordered that the order so appealed from is unanimously modified on the law by denying those parts of the motion with respect to demand Nos. 8 and 16 of the demand for [1212] a bill of particulars and striking those demands and as modified the order is affirmed without costs. Memorandum: Plaintiff commenced this action seeking damages arising from the alleged failure of defendants, the auditors of plaintiffs financial records, to discover in a timely manner the criminal acts of one of plaintiffs employees. Supreme Court granted defendants’ motion to compel plaintiff to provide a complete response to defendants’ “Supplemental Article 31 Demands” and to particularize its claims of negligence and fraud except insofar as defendants sought a particularization of damages, inasmuch “as those requests are evidentiary.” We conclude that the court erred in only two respects. First, we conclude that the court erred in requiring plaintiff to supply defendants with a statement of “each and every way the ‘defendants breached their duty of reasonable care in providing auditing services to [plaintiff],’ ” in response to demand No. 8. That demand is “beyond the scope of a bill of particulars . . . [because] to answer [that demand], plaintiff would have to provide evidentiary material in the form of, or gleaned from, expert testimony” (Heyward v Ellenville Community Hosp., 215 AD2d 967, 968 [1995]). Second, we conclude that the court erred in requiring plaintiff to respond to demand No. 16 inasmuch as that demand seeks information applicable to affirmative defenses, “upon which [defendants] have the burden of proof’ (New England Seafoods of Amherst v Travelers Cos., 84 AD2d 676, 677 [1981]). We therefore modify the order accordingly. Present—Hurlbutt, J.P, Martoche, Peradotto, Pine and Gorski, JJ.