IN RE: a Family Offense Proceeding under article 8 of the Family Court Act CARLOS L.

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IN RE: a Family Offense Proceeding under article 8 of the Family Court Act CARLOS L., Petitioner, v. SANDY C., Respondent.

No. O-xxxxxx/15.

Decided: January 22, 2016

Maria V. De La Cruz, Jamaica, for Petitioner. Heather Lothrop, Urban Justice Center, Kew Gardens, for Respondent.

The motion filed by the respondent, Sandy C., for an order compelling the petitioner, Carlos L., to serve a bill of particulars in response to respondent's demand, is granted (Civil Practice Law and Rules §§ 3041; 3042 [c] ).

In response to the respondent's written demand for a bill of particulars the petitioner declined to serve a bill of particulars complying with the demand, contending that this family offense proceeding is a “special proceeding” and that “leave of court is required” in order to obtain disclosure of any kind (see Civil Practice Law and Rules §§ 408; 3042[a] ). Respondent then filed this motion seeking an order to compel compliance with the demand (Civil Practice Law and Rules § 3042[c] ).1

Special proceedings are civil proceedings that are “a hybrid between an action and a motion” (3 Weinstein–Korn–Miller N.Y. Civ Prac ¶ 401.03 at 4–8 [2nd ed.2005] ), “in which a right can be established or an obligation enforced in summary fashion. Like an action, it ends in a judgment, but the procedure is similar to that on a motion” (Cruz v. T.D. Bank, N.A., 2014 WL 1569491 [SDNY 2014] [citation omitted] ).

Whether some or all of the proceedings within the jurisdiction of the Family Court constitute “special proceedings” and are therefore be subject to the provisions of article 4 of the Civil Practice Law and Rules, including the rule that leave of court be obtained prior to serving a demand for disclosure (Civil Practice Law and Rules § 408), is an issue which has not been definitively resolved (see Lebedeff v. Lebedeff, 17 N.Y.2d 557, 559 [1966] [interstate support proceeding is special proceeding]; Matter of K .Z. v. P.M., 29 Misc.3d 572, 573 [2010] [family offense is special proceeding]; Matter of E.T.N., 42 Misc.3d 526, 529 [2013] [guardianship is a special proceeding] ).2

Article 4 is a procedural statute that is intended to “provide[ ] a uniform body of rules generally applicable to all special proceedings” (Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, Civil Practice Law and Rules § 401, C401:1 at 340 [West 2010] ), but the Family Court Act specifically limits the applicability of the Civil Practice Law and Rules to those instances “[w]here the method of procedure in any proceeding in which the family court has jurisdiction is not prescribed” by the Family Court Act (Fam. Ct. Act § 165[a] ).

Moreover, in those situations where the Family Court Act does not provide specific a procedure the Civil Practice Law and Rules is to be applied only to the extent such procedure is “suitable to the proceedings involved” (id.; see Matter of Suffolk County Department of Social Services [Michael V.] v. James M., 83 N.Y.2d 178, 182 [1994]; Matter of Yamoussa M., 220 A.D.2d 138, 141 [1996]; Matter of Anthony M., 271 A.D.2d 709, 717 [2000]; Matter of Geraldine Rose W., 196 A.D.2d 313, 317 [1994], lv dismissed 84 N.Y.2d 967 [1994]; Matter of Bernal v. Bernal, 45 AD3d 589, 590 [2007] ).

Without reaching a definitive conclusion as to whether Family Court proceedings are special proceedings, it is noted that the majority of the proceedings within Family Court's jurisdiction are governed by specific procedures which take precedence over the more general procedures set forth in the Civil Practice Law and Rules (see Fam Ct Act § 165[a]; Yamoussa M., 220 A.D.2d 138 at 141; Matter of John H., 56 AD3d 1024, 1026 [2008]; Matter of Deandre GG., 79 AD3d 1384, 1385 [2010], lv denied 16 NY3d 708 [2011]; Sobie, Practice Commentaries, McKinney's Cons Laws of NY, Book 29A, Family Court Act § 165 at 144 [West 2008] [CPLR is clearly excluded when the issue in question is addressed by the Family Court Act] ).

In any event, petitioner's argument that Civil Practice Law and Rules § 408 requires that leave of court be obtained prior to seeking disclosure in a family offense proceeding is misplaced. While courts have been justifiably reluctant to authorize disclosure in family offense and other Family Court proceedings (Matter of Vanessa R., 148 A.D.2d 989 [1989]; Matter of Crystal AA., 271 A.D.2d 771, 772 [2000], lv dismissed 95 N.Y.2d 903 [2000]; Matter of Kunz v. Kunz, 119 Misc.2d 80, 81 [1983]; K.Z. v. P.M., 29 Misc.3d at 574), here the respondent has served a demand for a bill of particulars concerning the family offense petition filed in this proceeding.

It is well-established that the purpose of a bill of particulars is to amplify the pleadings, limit the proof, and prevent surprise at trial (Jones v. Le France Leasing Ltd. Partnership, 61 AD3d 824, 825 [2009]; Jurado v. Kalache, 93 AD3d 759, 760 [2012] ). A bill of particulars is not a discovery device (Tully v. Town of North Hempstead, 133 A.D.2d 657 [1987]; Blank v. Schafrann, 180 A.D.2d 886, 887[1992]; Mayer v. Hoang, 83 AD3d 1516, 1517 [2011]; Fremont Investment & Loan v. Gentile, 94 AD3d 1046 [2012] ). Under such circumstances, leave of court is unnecessary to serve a demand for a bill of particulars, regardless of whether a family offense proceeding constitutes a “special proceeding”.

It is therefore

ORDERED, that respondent's motion for an order compelling the petitioner to serve a bill of particulars in response to respondent's demand is granted (Civil Practice Law and Rules § 3042[c] ); and it is further

ORDERED, that petitioner shall serve the bill of particulars upon counsel for the respondent within ten (10) days of the date upon which this order is mailed to counsel for the parties by the Clerk of Court or her designee.

This constitutes the order of the Court.

FOOTNOTES

1.  The statute provides, in pertinent part, that “[i]f a party fails to respond to a demand in a timely fashion or fails to comply fully with a demand, the party seeking the bill of particulars may move to compel compliance” (Civil Practice Law and Rules § 3042[c]; see Kovacs v. Castle Restoration & Construction, Inc., 262 A.D.2d 165, 166 [1999]; Johnson v. Dow, 56 AD3d 1288, 1289 [2008] ).

2.  The holding in Matter of E.T.N. appears to be at odds with Family Court Act § 661(a) which provides that guardianship proceedings shall be adjudicated pursuant to the provisions set forth in the Surrogate's Court Procedure Act, rather than the procedures contained in article 4 of the Civil Practice Law and Rules (see Matter of Maura A.R.-R., 114 AD3d 687, 688 [2014] ).

JOHN M. HUNT, J.