response to bill of particulars new york

#Response to bill of particulars new york code#

In Butler, plaintiff was the owner and the defendant a manager of a store. However, if documentation of the transaction is not available, or if primary sources are not available, the plaintiff is required to explain how the business is run, how the time and debt were actually recorded. Security Trust & Sav Bank (1958) 162 Cal.App.2d 90, 93, citing C han Kiu Sing v Gordon (1915) 171 Cal. The foundation that must be laid for the introduction of “ business records” include: (1) the books or records are books of account, (2) kept in the regular course of business, (3) the business is of character in which it is proper and customary to keep such books, (4) the entries are either original entries or the first permanent entries of the transaction, (5) made at the time or within a reasonable proximity to the time of the transaction, and (6) the persons making them had personal knowledge of the transactions. Plaintiff has the burden of showing they have the proper business records to support their Bill of Particulars and the claim documented thereby. Also, trained accountants can more efficiently and inexpensively examine long accounts and determine if the line items are proper. Universal City Studios (1997) 56 CA 4th 482.

#Response to bill of particulars new york code#

Pursuant to Code of Civil Procedure section 639(a)(1) which states that the court can appoint a Referee “ hen the trial of an issue of fact requires the examination of a long account on either side.” A Referee can determine the proper accounting method to apply where there is conflicting evidence as to the proper standard. Your motion should also include a request for a Referee to be appointed. When determining whether to bring a motion to strike a line item you need to review the line item as to whether or not the line item (1) was contemporaneously created and (2) is reflected in any invoice, business records or ledgers. Rather, each entry is considered a separate claim, Plaintiffs may move to strike each entry on the ground that it is deficient and not supported by ledger, book account, invoice or any other business record.īecause the Bill of Particulars is a pleading, each line item is a separate claim for purposes of a motion to strike.

The Bill of Particulars is not a single pleading. Thus, since the information supporting the account is presumptively in plaintiff’s possession, and it is Defendant’s opportunity afforded by law to obtain detail of this claim from the information that was kept in Plaintiffs books and records. Santa Barbara National Bank (1966) 247 Cal.

Guide: Civil Procedure Before Trial (TRG 2019) ♨:1781 citing Burton v. However, Defendant’s failure to bring such a motion is a waiver of their objection to the sufficiency of the information furnished describing the account. Guide: Civil Procedure Before Trial (TRG 2019) ♨:1780.

More importantly, if the court finds that any of the line items are deficient it can strike the entry and preclude plaintiff/cross-complainant from proving the debt is owed.Īccording to Code of Civil Procedure §454, if the information in the Bill of Particulars is too general or incomplete, the defendant may make a noticed motion for a further bill. Unlike interrogatories and deposition testimonies, a Bill of Particulars is conclusive as to the items and amounts claimed and no other evidence is admissible at trial. As stated in the blog “ It’s Not a Discovery Device, But…”, a Demand for Bill of Particulars is NOT a discovery device, but an extension of the complaint or a cross-complaint.