Hornung v. Mucci

Appellate Division of the Supreme Court of New York

Hornung v. Mucci

52 A.D.2d 904, 383 N.Y.S.2d 379, 1976 N.Y. App. Div. LEXIS 12752

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

DecidedMay 17, 1976

StatusPublished

Cited by1 cases

This text of 52 A.D.2d 904 (Hornung v. Mucci) 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

Hornung v. Mucci, 52 A.D.2d 904, 383 N.Y.S.2d 379, 1976 N.Y. App. Div. LEXIS 12752 (N.Y. Ct. App. 1976).

Pincite

Opinion

In consolidated negligence actions, the defendants Good and Dean appeal from (1) an order of the Supreme Court, Queens County, dated April 1, 1975, which, inter alia, granted the motion of the plaintiff Alexander (a) for leave to serve a supplemental bill of particulars, (b) to transfer the case from the Civil Court of the City of New York, Queens County, to the Supreme Court, Queens County and (c) for a general preference and (2) a further order of the same court, dated October 6, 1975, which resettled the prior order by restoring the action to the ready day calendar on condition that respondent submit to a physical examination. Orders affirmed, without costs or disbursements. The examination shall take place by the doctor and at the place stated in the order dated October 6, 1975, and shall proceed upon written notice of not less than 10 days, to be given by appellants, or at such time as the parties may agree. Special Term had the authority to entertain a motion to transfer even though the action had been previously transferred to the Civil Court (see NY Const, art VI, § 19, subd a; Matter of De Kenipp v Rodrequiz, 14 AD2d 578). Since the moving papers contained a sufficient medical affidavit, which formed the complete basis for the plaintiff’s attempt to serve a supplemental bill of particulars, and since plaintiff was a passenger in the vehicle which collided with the chr owned by appellant Dean and operated by appellant Good, there was no necessity for the inclusion of an affidavit of merits (see Bernas v Kepner, 36 AD2d 58; Koupash v Grand Union Co., 34 AD2d 695; Ryan v Collins, 33 AD2d 966). The moving papers themselves established that new consequential damages may have developed as a result of the accident. Therefore, despite the lengthy and unexplained delay in serving the supplemental bill, Special Term did not abuse its discretion in conditionally granting the motion. Any potential prejudice was cured by the requirement that respondent undergo a new physical examination to be conducted by appellants’ physician. In addition, Special Term properly imposed a full bill of costs on respondent for her lengthy delay. Cohalan, Acting P. J., Margett, Damiani, Rabin and Shapiro, JJ., concur.

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In consolidated negligence actions, the defendants Good and Dean appeal from (1) an order of the Supreme Court, Queens County, dated April 1, 1975, which, inter alia, granted the motion of the plaintiff Alexander (a) for leave to serve a supplemental bill of particulars, (b) to transfer the case from the Civil Court of the City of New York, Queens County, to the Supreme Court, Queens County and (c) for a general preference and (2) a further order of the same court, dated October 6, 1975, which resettled the prior order by restoring the action to the ready day calendar on condition that respondent submit to a physical examination. Orders affirmed, without costs or disbursements. The examination shall take place by the doctor and at the place stated in the order dated October 6, 1975, and shall proceed upon written notice of not less than 10 days, to be given by appellants, or at such time as the parties may agree. Special Term had the authority to entertain a motion to transfer even though the action had been previously transferred to the Civil Court (see NY Const, art VI, § 19, subd a; Matter of De Kenipp v Rodrequiz, 14 AD2d 578). Since the moving papers contained a sufficient medical affidavit, which formed the complete basis for the plaintiff’s attempt to serve a supplemental bill of particulars, and since plaintiff was a passenger in the vehicle which collided with the chr owned by appellant Dean and operated by appellant Good, there was no necessity for the inclusion of an affidavit of merits (see Bernas v Kepner, 36 AD2d 58; Koupash v Grand Union Co., 34 AD2d 695; Ryan v Collins, 33 AD2d 966). The moving papers themselves established that new consequential damages may have developed as a result of the accident. Therefore, despite the lengthy and unexplained delay in serving the supplemental bill, Special Term did not abuse its discretion in conditionally granting the motion. Any potential prejudice was cured by the requirement that respondent undergo a new physical examination to be conducted by appellants’ physician. In addition, Special Term properly imposed a full bill of costs on respondent for her lengthy delay. Cohalan, Acting P. J., Margett, Damiani, Rabin and Shapiro, JJ., concur.

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Bluebook (online)

52 A.D.2d 904, 383 N.Y.S.2d 379, 1976 N.Y. App. Div. LEXIS 12752, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hornung-v-mucci-nyappdiv-1976.

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