January 22, 2016
Attorney for Petitioner was Maria V. De La Cruz of Jamaica. The attorney for the defendant was Heather Lothrop of Kew Gardens.
The respondent Sandy C. filed for an Order Compelling the Petitioner, Carlos L., to serve a bill of particulars, which is granted (Civil Practice Law and Rules sec. 3041. 3042 [a]).
The Petitioner declined to serve a bill of particulars complying with the demand. He argues that this is a special proceeding and that a special proceeding, and that a special leave of court is required to obtain a disclosure (Civil Practice Law and Rules 408, 3042[a]) The respondent filed this motion for an order to compel compliance (Civil Practice Law and Rules Sec. 3042[c]).
The court defines special proceedings as a “hybrid between an action and a motion” (Weinstien-Korn-Miller NY Civil Practice 401.03 at 4-8 [2nd ed 2005]. The court says that where an obligation can be enforced or a right established the procedure is similar to a motion, but ends with a judgment (Cruz v TD Bank N.A. 2014 WL 1569491[SDNY 2014].
In the United States, a legal motion is a procedural device to call the court to make a decision on a particular issue. A motion may be brought at any stage of a case, though the right to do so is regulated by court rules. These court rules will vary from state to state.
Whether any of the proceedings are in the jurisdiction of the family court are considered special proceedings and come under the guidelines of Civil and Practice Rules, Article 4. This includes a rule that that a leave of court needs to be obtained prior to serving a demand for disclosure (Civil Practice Law 408) and is an issue that is yet to be resolved (Lebedeff v Lebedeff 17 NY 557, 559 1966, Matter of K.Z. v. P.M. 29 Misc. 3d 572, 573, Matter of ETB 42 Misc. 3d 526.
The court says that article 4 is a statute that was created to provide uniform rules that are applicable to all proceedings (Alexander Practice Commentaries, McKinneys Cons of Laws of NY, Book 7B, Civil Practice Laws and Rules 401, C401:1 at 340. The court however, limits the application of the of the civil practice law to those instances where the procedure isn’t already set out (Fam Ct. Act 165 [a].
Where the court is silent regarding procedure, civil practice law is applied as needed (Matter of Suffolk County Department of Social Services [Michael V] v. James M. 83 NY 2d 178 .
The majority of family court matters are governed by the rules of procedure, Civil Practice law is applied which will take priority over the procedures set forth in Civil Practice Law and Rules (Fam Court Act 165[a]; Yamnoussa M. 220 AD 138 at 141. Generally, civil procedure is a set of rules and standards that are established by law, and applied when bringing a case to court.
The petitioners contend that Civil Practice Rule 408 requires that a leave of court be obtained prior to seeking disclosure is incorrect. Courts have been reluctant to authorize disclosure in a family offense (Matter of Vanessa 148 AD2d 989, Matter of Crystal AA 271, AD2nd 771. In this case, the respondent served a demand for a bill of particulars for a family offense petition.
The purpose of a bill of particulars is to amplify the pleadings, prevent any surprises at trial and limit the proof (Jones v. Le France Leasing, Ltd. Partnership 61 AD3d 824, 825 , Jurado v. Kalache 93 AD3d 759. A leave of court is not necessary to serve a demand for a bill of particulars irrespective of whether a family proceeding is considered a “special proceeding.”
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