White Plains Towing Corp. v. State

In a claim to recover damages for breach of contract, the claimants appeal from a judgment of the Court of Claims (Lengyel, J.), entered April 11, 1990, which dismissed the claim. Ordered that the judgment is affirmed, with costs. On appeal, the claimants contend, inter alia, that the Court of Claims erred in rejecting their attempt to utilize the verified bill of particulars as evidence-in-chief establishing [504] that the State had breached the subject contract. It is elementary that the purposes of a bill of particulars are to amplify pleadings, limit proof, and prevent surprise at trial (see, Scott v General Motors Corp., 117 AD2d 662). The factual allegations within a bill of particulars do not constitute affirmative proof and, thus, may not be used for that purpose (see, Matter of Court & Remsen Bldg. Corp. [Pollack], 303 NY 358, 360; Morell v Saratoga Harness Racing, 44 AD2d 884, 885; see also, 84 NY Jur 2d, Pleading, § 335). In addition, contrary to the claimant’s contentions, the bill of particulars was not admissible as a past recollection recorded because it was not prepared "contemporaneously with the occurrence of the facts recited” (People v Caprio, 25 AD2d 145, 150). Accordingly, since the only evidence of breach proffered by the claimants was not admissible as evidence-in-chief, the Court of Claims properly dismissed their claim. Lawrence, J. P., Eiber, O’Brien and Copertino, JJ., concur.