Does a Defendant Have to Provide a Bill of Particulars on Matters on Which He Bears the Burden of Proof ?
In Ryan v. Beavers (170 AD2d 1045 [4th Dept 1991]), the Fourth Department precluded defendants from presenting proof with respect to their article 16 apportionment defense unless defendants served a responsive bill of particulars.
The Fourth Department held that "defendants must provide a responsive bill of particulars with respect to their third affirmative defenses because they bear the burden of proof under CPLR 1603, as the parties seeking to limit their liability." (Id. at 1046.)
CPLR 1603 provides in part that a "party asserting limited liability pursuant to this article shall have the burden of proving by a preponderance of the evidence its equitable share of the total liability."
The Ryan court observed that "it is well settled that a party must provide a bill of particulars on matters on which he bears the burden of proof (see, Siegel, NY Prac 238, at 292)." (Id.)
In contrast, in Marsala v. Weinraub (208 AD2d 689 [2d Dept 1994]), the Second Department majority held that whenever a plaintiff sues multiple defendants, the article 16 apportionment defense will automatically apply by operation of CPLR 1601 (1), unless the plaintiff can prove that an exception is applicable.
Consequently, the Second Department reasons, in those cases in which article 16 apportionment automatically applies, no affirmative defense need be pleaded.
Since article 16 need not be pleaded as an affirmative defense, "it follows that the respondents need not provide a bill of particulars with regard to CPLR article 16 (contra, Ryan v. Beavers, 170 AD2d 1045)." (Marsala at 690.)