Federici v. Polito

Appellate Division of the Supreme Court of New York

Federici v. Polito

198 A.D.2d 261, 603 N.Y.S.2d 169, 1993 N.Y. App. Div. LEXIS 10432

Appellate Division of the Supreme Court of the State of New York·Decided November 8, 1993·Published·Cited by 1 cases

Opinion

—In an action to recover damages for personal injuries, etc., the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Saladino, J.), entered August 22, 1991, as granted the plaintiffs’ motion for leave to amend the complaint by increasing the ad damnum clause from $100,000 to $1,000,000.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the motion is denied, without prejudice to renewal.

The defendants did not waive their right to appeal by engaging in additional discovery which was authorized in the order appealed from (cf., Chirkis v Hutton & Co., 155 AD2d 411; Guillen v 652 Broadway Corp., 168 AD2d 486). Addressing the claim on the merits, we conclude that because the plaintiffs failed to submit a statement from a physician in support [262] of their motion, the court improvidently exercised its discretion in granting it (see, Sylvester v Stephens, 148 AD2d 523). However, in keeping with the liberal policy permitting the amendment of pleadings under appropriate circumstances, the denial of the motion is without prejudice to renewal upon proper papers (see, Sylvester v Stephens, supra). Mangano, P. J., Rosenblatt, Lawrence, Copertino and Joy, JJ., concur.

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—In an action to recover damages for personal injuries, etc., the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Saladino, J.), entered August 22, 1991, as granted the plaintiffs’ motion for leave to amend the complaint by increasing the ad damnum clause from $100,000 to $1,000,000.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the motion is denied, without prejudice to renewal.

The defendants did not waive their right to appeal by engaging in additional discovery which was authorized in the order appealed from (cf., Chirkis v Hutton & Co., 155 AD2d 411; Guillen v 652 Broadway Corp., 168 AD2d 486). Addressing the claim on the merits, we conclude that because the plaintiffs failed to submit a statement from a physician in support [262] of their motion, the court improvidently exercised its discretion in granting it (see, Sylvester v Stephens, 148 AD2d 523). However, in keeping with the liberal policy permitting the amendment of pleadings under appropriate circumstances, the denial of the motion is without prejudice to renewal upon proper papers (see, Sylvester v Stephens, supra). Mangano, P. J., Rosenblatt, Lawrence, Copertino and Joy, JJ., concur.

Federici v. Polito, 198 A.D.2d 261, 603 N.Y.S.2d 169, 1993 N.Y. App. Div. LEXIS 10432 (N.Y. Ct. App. 1993).

Pincite

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Opinion

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