Montalvo v. Mackenessie

75 A.D.2d 843, 427 N.Y.S.2d 859, 1980 N.Y. App. Div. LEXIS 11451

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 12, 1980
• Status: Published

Opinion

a negligence action to recover damages for wrongful death and conscious pain and suffering, defendants Mackenessie and Mirable, doing business as M&M Country Club, appeal from an order of the Supreme Court, Kings County, entered February 21, 1979, which granted plaintiffs’ motion to serve and file an amended complaint increasing the ad damnum clause. Order reversed, on the law, with $50 costs and disbursements, and motion denied, without prejudice to renew upon proper papers. Plaintiffs’ moving affidavit made the single unsupported statement that, "plaintiff’s [sic] attorneys have only recently received notification with respect to [the] amount of insurance coverage provided to defendants.” Although this motion was based only on a re-evaluation of past injuries, with respect to the personal injury cause of action, this bald statement of a fact totally unrelated to the injuries of the decedent is inadequate to justify granting the amendment. On the cause of action for wrongful death, an additional reason exists for reversal. The original complaint alleges loss of the decedent’s comfort and society. This is not a permissible basis for recovery (see Grant v Guidotti, 49 NY2d 622). Cohalan, J. P., Margett, O’Connor and Weinstein, JJ., concur.