Dones v. Nomad Service Corp.

Appellate Division of the Supreme Court of New York

Dones v. Nomad Service Corp.

69 A.D.2d 794, 415 N.Y.S.2d 419, 1979 N.Y. App. Div. LEXIS 11421

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 17, 1979

StatusPublished

This text of 69 A.D.2d 794 (Dones v. Nomad Service Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Dones v. Nomad Service Corp., 69 A.D.2d 794, 415 N.Y.S.2d 419, 1979 N.Y. App. Div. LEXIS 11421 (N.Y. Ct. App. 1979).

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Opinions

Order of the Supreme Court, Bronx County, entered January 6, 1978, denying appellant’s motion for leave to serve an amended complaint and to transfer an action from the Civil Court of the City of New York, Bronx County, to the Supreme Court of the State of New York, Bronx County, affirmed, without costs or disbursements. Appellant, a passenger in respondents’ taxicab and injured in a collision with another vehicle at an intersection on November 30, 1972, received emergency treatment at New York Hospital. He continued to receive treatment as an out-patient until December 13, 1972 and thereafter was attended by private physicians. Until that occurrence he was employed by the United States Post Office. An action for personal injuries was instituted in the Civil Court in February, 1973. The instant motion was made October, 1977. A similar motion was made in May, 1975, and the relief sought was denied on the ground that there was lacking any physical examination by respondents’ physician. We find that Special Term properly exercised its discretion in denying the present motion. The medical affidavits submitted by appellant are insufficient to support his claim that he sustained a herniated intervertebral disc. Dr. Etkind’s affidavit merely declares that the patient "sustained * * * signs of a herniated lower intervertebral disc”. Dr. Fuertes’ affidavit states that appellant "sustained a herniation (rupture) of the nucleus pulposus at L4 (fourth lumbar disc) (by history)”. Nor, absent a showing of such injury, can appellant’s alleged loss of earnings in sum of $45,000 be chargeable to the accident. Appellant has not demonstrated that his action could result in a verdict in excess of the monetary jurisdiction of the Civil Court (see Poole v Hertz Corp., 65 AD2d 787). Furthermore, there has been no showing by the claimant, on whom the burden rests, that he could not sooner have discovered the alleged condition on which his motion is based or that new injuries have manifested themselves since the commencement of the action and he has moved as soon as practicable thereafter for the relief now sought (see Koi v P. S. & M. Catering Corp., 15 AD2d 775; see, also, Marzan v Park Ave. Enclosed Market Merchants Assn., 67 AD2d 849). Concur—Birns, J. P., Fein and Silverman, JJ.

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Order of the Supreme Court, Bronx County, entered January 6, 1978, denying appellant’s motion for leave to serve an amended complaint and to transfer an action from the Civil Court of the City of New York, Bronx County, to the Supreme Court of the State of New York, Bronx County, affirmed, without costs or disbursements. Appellant, a passenger in respondents’ taxicab and injured in a collision with another vehicle at an intersection on November 30, 1972, received emergency treatment at New York Hospital. He continued to receive treatment as an out-patient until December 13, 1972 and thereafter was attended by private physicians. Until that occurrence he was employed by the United States Post Office. An action for personal injuries was instituted in the Civil Court in February, 1973. The instant motion was made October, 1977. A similar motion was made in May, 1975, and the relief sought was denied on the ground that there was lacking any physical examination by respondents’ physician. We find that Special Term properly exercised its discretion in denying the present motion. The medical affidavits submitted by appellant are insufficient to support his claim that he sustained a herniated intervertebral disc. Dr. Etkind’s affidavit merely declares that the patient "sustained * * * signs of a herniated lower intervertebral disc”. Dr. Fuertes’ affidavit states that appellant "sustained a herniation (rupture) of the nucleus pulposus at L4 (fourth lumbar disc) (by history)”. Nor, absent a showing of such injury, can appellant’s alleged loss of earnings in sum of $45,000 be chargeable to the accident. Appellant has not demonstrated that his action could result in a verdict in excess of the monetary jurisdiction of the Civil Court (see Poole v Hertz Corp., 65 AD2d 787). Furthermore, there has been no showing by the claimant, on whom the burden rests, that he could not sooner have discovered the alleged condition on which his motion is based or that new injuries have manifested themselves since the commencement of the action and he has moved as soon as practicable thereafter for the relief now sought (see Koi v P. S. & M. Catering Corp., 15 AD2d 775; see, also, Marzan v Park Ave. Enclosed Market Merchants Assn., 67 AD2d 849). Concur—Birns, J. P., Fein and Silverman, JJ.

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69 A.D.2d 794, 415 N.Y.S.2d 419, 1979 N.Y. App. Div. LEXIS 11421, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dones-v-nomad-service-corp-nyappdiv-1979.

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