Richardson v. Long Island Rail Road

189 Misc. 161, 70 N.Y.S.2d 876, 1947 N.Y. Misc. LEXIS 2482

Opinion

Colden, J.

Plaintiff, in an action to recover damages for personal injuries, moves to vacate items 4 and 5 of defendant’s demand for a bill of particulars upon the ground that the accident in question occurred under circumstances that render the doctrine of res ipso loquitur applicable.

It is, of course, true that where a plaintiff relies on the foregoing doctrine, a defendant is not entitled to particulars as to the specific acts of negligence which are claimed to have caused the accident (Haines v. City of Newburgh, 234 App. Div. 389; Hamilton v. New York State Realty & Terminal Co., 66 N. Y. S. 2d 177). However, in the court’s discretion, the plaintiff will be required to state, in her bill of particulars to be served herein, that she intends to rely upon the doctrine of res ipso loquitur, and if such statement be made, then items 4 and 5, which require particulars as to the acts of negligence, will be eliminated. (Cf. Smith v. Bower, 270 App. Div. 977.) The bill of párticulars will be served within fifteen days after the service of a copy of the order hereon.