The legal process for personal injury and medical malpractice cases in New York can be long, confusing and difficult. I work hard to make that process work for my clients by squeezing out every day to shorten the process as much as possible. I also work hard to keep my clients up to date on all activities with their cases and to educate them about the process so it is less confusing.
I have used this blog to explain the various steps in the legal process. Today, I will write about the initial response by the defendant to a lawsuit, which is made by sending two documents to the plaintiff attorney: an answer to the plaintiff’s complaint and a demand for a bill of particulars.
Filing a Lawsuit in New York: The Summons and Complaint
One begins a personal injury or medical malpractice lawsuit in New York by filing two documents with the courts: the summons and complaint. When doing so, an attorney purchases an index number from the court (at a cost of $210). With the purchase of the index number, the attorney registers the case with the court.
The Complaint states the basis for the lawsuit in very general terms. The Summons requires the defendant to respond. You can learn more about starting a lawsuit in New York in the article: Filing a Lawsuit in New York: The Summons and Complaint.
The Defendant’s Response to the Summons and Complaint
The defendant has thirty days (only twenty days if they received the Summons and Complaint via personal service) to respond to the Summons and Complaint. Typically, they respond with two documents:
- Answer to the Complaint
- Demand for a Bill of Particulars
Answering the Complaint
The defendant must answer the complaint. Failing to do so is the same as admitting that all of the allegations in the Complaint are true. The Defendant has a few options:
- It can deny each allegation.
- It can deny some of the allegations and admit others.
- It can claim to lack sufficient information to answer the allegation.
- It can plead an Affirmative Defense.
In an Affirmative Defense, the defendant claims a legal reason to limit, excuse or avoid responsibility. In criminal cases, self-defense is a classic example of an Affirmative Defense. In a civil suit, a common Affirmative Defense claims that the plaintiff is also responsible [comparatively negligent] or had assumed certain risk in undertaking an action. For example, if a person sues a ski slope because he fell and broke his leg, the ski slope may admit that the man broke his leg, but assert that in skiing down a mountain, he accepted the risk that he might fall and break his leg or the ski slope operator may assert that the skier was also negligent and responsible, in part, for his own injury.
Many law firms use boilerplate Complaints and Answers, meaning they use the same Complaint or Answers for many cases. I do not and think it is unwise to do so. Given the fact that an admission or a denial in an Answer can have a very significant effect on what needs to be proved at trial, I believe that a Complaint with very specific allegations pertinent to a particular case sharpens the issues at trial and makes for a more successful prosecution of the case.
In preparing a Complaint, I create as many discrete paragraphs as possible. Each paragraph contains a precise allegation. I take this approach to force the defense to admit as many allegations as possible. If a lawyer puts multiple allegations in one paragraph, then the defense can deny the allegation in that paragraph even if two are true and one is not true. If a defendant attempts to deny an obviously valid allegation, then I can file a motion requesting that the Court sanction the defendant for frivolous conduct.
When I receive the Answer to our Complaint, I carefully mark up the original Complaint, noting the response from the defense to each allegation. If need be, I make a motion to the Court to strike any improper denials in the Answer.
The Demand for a Bill of Particulars
The Demand for a Bill of Particulars is simply a list of questions that the defense poses to get more details about a plaintiff’s Complaint. Where the initial complaint may be general, the Demand for a Bill of Particulars requires details. According to New York State law, a defendant may request the following information in their Demand for a Bill of Particulars:
(1) The date and approximate time of day of the occurrence;
(2) Its approximate location;
(3) General statement of the acts or omissions constituting the negligence claimed;
(4) Where notice of a condition is a prerequisite, whether actual or constructive notice is claimed;
(5) If actual notice is claimed, a statement of when and to whom it was given;
(6) Statement of the injuries and description of those claimed to be permanent;
(7) Length of time confined to bed and to house;
(8) Length of time incapacitated from employment; and
(9) Total amounts claimed as special damages for physicians’ services and medical supplies; loss of earnings, with name and address of the employer; hospital expenses; nurses’ services.
Once I receive the Demand for a Bill of Particulars, I prepare and respond with a Bill of Particulars. I will discuss that document and related actions in a later article. After exchanging these documents, the case will enter the Discovery Phase and you can read about that in this article, “What Happens in the Discovery Phase of a Case?”
I hope you have found this information helpful. I do need to remind you that this information offers general guidelines. If you have questions about a specific case, you should consult an experienced personal injury lawyer in New York. I will be glad to answer your questions and assist you. You can call me at 1-800-660-1466 or email me. You can also visit my website or read more on my blog, New York Law Thoughts.
This material is intended for informational uses only. It is not meant as legal advice. To receive legal advice, you should consult an attorney.