Scalzo v. Brunori

17 A.D.2d 612, 229 N.Y.S.2d 760, 1962 N.Y. App. Div. LEXIS 8616

Opinion

Order, entered on January 31, 1962, granting motion to remove the action from the City Court to the Supreme Court unanimously reversed on the law and the facts, with $20 costs and disbursements to the appellants, and the motion denied, with $10 costs. A prior application based on a doctor’s affidavit was denied with leave to renew providing some support for the application was to be found in the hospital records. On this application the hospital records were submitted but they add nothing either by way of corroboration or in addition to the affidavit already submitted. Accordingly, it was improper to grant the application. The original affidavit was patently insufficient. When an affidavit of a physician is submitted in support of a motion of this kind, or in a related situation such as an application to increase damages, or for a preference or the like, it is essential to show the following: The condition of the plaintiff, and that this condition was proximately caused by the accident. In so doing the eonclusory averment of the physician to that effect is not sufficient but facts revealed in his examination which led to his opinion must be set out. If the claim is also based on prognosis of a condition that will develop in, or extend into, the future, facts similarly established must be stated. Concur — Breitel, J. P., Valente, McNally, Eager and Steuer, JJ.