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THE J.H.O./REFEREE WAS NOT AUTHORIZED BY CPLR 3104 OR ANY ORDER ISSUED BY THE COURT TO CONSIDER AN ALLEGED DEFICIENCY IN THE AMENDED BILL OF PARTICULARS; THE ISSUE PRESENTED A QUESTION OF LAW WHICH COULD NOT HAVE BEEN AVOIDED BELOW, THEREFORE IT MAY BE RAISED FOR THE FIRST TIME ON APPEAL; ORDER STRIKING THE COMPLAINT VACATED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Judicial Hearing Officer (J.H.O)/Referee did not have the authority to grant defendants motion to strike the complaint on the ground the amended bill of particulars did not comply with prior court orders. A bill of particulars is not part of any disclosure procedure which CPLR 3104 authorizes a referee to supervise. Because this is question of law could not have been avoided if brought up below, the issue can be raised for the first time on appeal:

“Since a bill of particulars is not a disclosure device but a means of amplifying a pleading, the present dispute over the contents of the [plaintiffs’ amended] bill[s] of particulars is not part of any disclosure procedure that CPLR 3104 authorizes a referee to supervise” … . Since CPLR 3104 did not authorize the J.H.O./Referee to determine the defendants’ separate motions, among other things, to strike the complaint insofar as asserted against each of them based upon the defendants’ objections to the plaintiffs’ amended bills of particulars, and there exists no order of reference authorizing the J.H.O./Referee to determine the defendants’ motions, the J.H.O./Referee was without authority to determine the defendants’ separate motions, inter alia, to strike the complaint insofar as asserted against each of them … . Kramarenko v New York Community Hosp., 2021 NY Slip Op 03450, Second Dept 6-2-21

 

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