Falkenstein v. Heyman

Appellate Division of the Supreme Court of New York

Falkenstein v. Heyman

12 A.D.2d 918, 210 N.Y.S.2d 953, 1961 N.Y. App. Div. LEXIS 12536

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

DecidedFebruary 21, 1961

StatusPublished

This text of 12 A.D.2d 918 (Falkenstein v. Heyman) 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.

Bluebook

Falkenstein v. Heyman, 12 A.D.2d 918, 210 N.Y.S.2d 953, 1961 N.Y. App. Div. LEXIS 12536 (N.Y. Ct. App. 1961).

Pincite

Opinion

Order, entered on May 11, 1960, denying the defendants-appellants’ motion for an order striking this action from the Trial Calendar, unanimously reversed on the law and on the facts, with $20 costs and disbursements to the appellants and motion to strike the action from the calendar granted, with $10 costs.' The complaint alleged and demanded a recovery of $10,000 as damages for the alleged personal injuries of plaintiff Anne Falkenstein. Thereafter, on claim of said plaintiff of the alleged very serious nature of her injuries, not known at time of commencement of action, and on March 29, 1960, the court granted a motion by said plaintiff to amend the complaint, including the ad damnum clause, so as to increase the amount of damages claimed by her from $10,000 to $150,000. Thereafter, plaintiffs served an amended complaint to allege and demand the increased damages, and thereupon the parties stipulated that the answer, demand for bill of particulars and the bill of particulars originally served stand as applicable to the complaint as amended. Later and on April 20, 1960, the plaintiffs served by mail a note of issue and statement of readiness to place the cause on the Jury Calendar. On the same day (April 20, 1960), however, the defendants had served a notice to examine the plaintiffs, and, thereupon, the motion now before the court was made by defendants to strike the action from the calendar. Under the circumstances, upon the amendment of the complaint to allege and demand the substantially increased damages in favor of plaintiff Anne Falkenstein, the defendants, not having had a pretrial examination of plaintiffs, were entitled to a further opportunity therefor. Thus, at time of service of the note of issue, all proper preliminary proceedings had not been completed, and the action -was not ready for trial. Consequently, it was an abuse of discretion for Special Term to deny defendants’ motion, timely made, to strike the cause from the calendar. (Statement of Readiness Rule of this court, subds. 5, 6; Price v. Brody, 7 A D 2d 204.) Concur — Botein, P. J., Breitel, Rabin, Eager and Bastow, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Order, entered on May 11, 1960, denying the defendants-appellants’ motion for an order striking this action from the Trial Calendar, unanimously reversed on the law and on the facts, with $20 costs and disbursements to the appellants and motion to strike the action from the calendar granted, with $10 costs.' The complaint alleged and demanded a recovery of $10,000 as damages for the alleged personal injuries of plaintiff Anne Falkenstein. Thereafter, on claim of said plaintiff of the alleged very serious nature of her injuries, not known at time of commencement of action, and on March 29, 1960, the court granted a motion by said plaintiff to amend the complaint, including the ad damnum clause, so as to increase the amount of damages claimed by her from $10,000 to $150,000. Thereafter, plaintiffs served an amended complaint to allege and demand the increased damages, and thereupon the parties stipulated that the answer, demand for bill of particulars and the bill of particulars originally served stand as applicable to the complaint as amended. Later and on April 20, 1960, the plaintiffs served by mail a note of issue and statement of readiness to place the cause on the Jury Calendar. On the same day (April 20, 1960), however, the defendants had served a notice to examine the plaintiffs, and, thereupon, the motion now before the court was made by defendants to strike the action from the calendar. Under the circumstances, upon the amendment of the complaint to allege and demand the substantially increased damages in favor of plaintiff Anne Falkenstein, the defendants, not having had a pretrial examination of plaintiffs, were entitled to a further opportunity therefor. Thus, at time of service of the note of issue, all proper preliminary proceedings had not been completed, and the action -was not ready for trial. Consequently, it was an abuse of discretion for Special Term to deny defendants’ motion, timely made, to strike the cause from the calendar. (Statement of Readiness Rule of this court, subds. 5, 6; Price v. Brody, 7 A D 2d 204.) Concur — Botein, P. J., Breitel, Rabin, Eager and Bastow, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

12 A.D.2d 918, 210 N.Y.S.2d 953, 1961 N.Y. App. Div. LEXIS 12536, Counsel Stack Legal Research, https://law.counselstack.com/opinion/falkenstein-v-heyman-nyappdiv-1961.