Scalzo v. Brunori

29 A.D.2d 520, 286 N.Y.S.2d 211, 1967 N.Y. App. Div. LEXIS 2792

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 12, 1967
• Status: Published

Opinion

Order entered July 7, 1967, granting plaintiffs’ motion to transfer action from the Civil Court of the City of New York to the Supreme Court of the State of New York, County of The Bronx, and to increase ad damnum clause, affirmed, with $30 costs and disbursements to respondents. The present application represents a fair compliance with the previous memorandum opinion of this court (17 A D 2d 612).. We treat with reserve the representations of the plaintiffs; but the conditions for the relief requested have been met, technically, and the action may go forward. Concur — Capozzoli, Tilzer, McGivern and Witmer, JJ.; Steuer, J. F., dissents in the following memorandum: This is an application to increase the ad damnum clause and to transfer the case from the Civil to the Supreme Court. Review of an earlier application for the same relief was passed upon by this court (17 A D 2d 612). In so doing, we pointed out that the conelusory affidavit of a physician that the accident proximately caused the injuries is not sufficient. The facts upon which he bases his conclusion must be set out. Here the hospital record shows a trivial injury. Other evidence shows that the unfortunate mental condition which is sought to be attributed to the accident long antedated the accident itself. There is no adequate explanation of this situation, nor is there any revelation of any facts upon which the doctor bases his conclusion that the accident, rather than the pre-existing disease, accounts for plaintiff’s present condition. Moreover, five years elapsed between the making of the two applications, and two years between the accident and the first application. The conditions laid down for granting this relief have not been met, and the-relief should have been denied.