Komorowski v. Smith

74 A.D.2d 841, 426 N.Y.S.2d 503, 1980 N.Y. App. Div. LEXIS 10602

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 10, 1980
• Status: Published

Opinion

In a negligence action to recover damages for personal injuries, plaintiff Gail Mittasch appeals from so much of an order of the Supreme Court, Kings County, dated September 10, 1979, as, upon reargument, adhered to the original determination denying that part of her motion which was for leave to serve a supplemental bill of particulars. Order modified by (1) deleting therefrom the provision which granted so much of the plaintiff Mittasch’s original motion as was to amend the caption of the action, and substituting therefor a provision denying said portion of the original motion, and (2) adding thereto a provision that the denial of those portions of the original motion which were to amend the caption of the action and serve, a supplemental bill of particulars is without prejudice to renew in the Civil Court of the City of New York. As so modified, order affirmed insofar as appealed from, without costs or disbursements. This personal injury action was originally transferred on consent to the Civil Court of the City of New York, Kings County, pursuant to CPLR 325 (subd [d]). Thereafter, appellant moved at Special Term of the Supreme Court, Kings County, to restore the action to the Supreme Court Calendar and for leave to serve a supplemental bill of particulars. That motion was denied without prejudice to renew upon proper papers. Appellant renewed the motion, requesting as additional relief that the caption t>f the action be changed severing the names of two plaintiffs who had settled their claims. That motion was denied. Appellant thereafter moved for reargument limiting the relief requested to leave to serve a supplemental bill of particulars and to amend the caption of the action. Special Term, by order dated September 10, 1979, granted the motion to reargue and, upon reargument, granted the change of caption and adhered to its prior decision in all other respects. This is the order appealed from. When appellant moved for reargument, she abandoned her request to restore the action to the Supreme Court Calendar. Once the motion to restore the action to the Supreme Court Calendar was denied, all further requests for relief should properly have been addressed to the Civil Court (see CPLR 326, subd [b]). Our decision herein is without prejudice to appellant’s right to apply in the Civil Court for leave to serve a supplemental bill of particulars and to amend the caption of the action. Laser, J. P., Mangano, Gibbons and Margett, JJ., concur.