Shore v. Lubov

46 A.D.2d 668, 359 N.Y.S.2d 904, 1974 N.Y. App. Div. LEXIS 3994

Opinion

In a dental malpractice action, defendant appeals from an order of the Supreme Court, Queens County, dated May 14, 1974, which granted plaintiff’s separate motions (1) for a pretrial examination of defendant and (2) to amend the complaint to increase the ad damwwm clause. Order reversed, with $20 costs and disbursements, and motions denied, without prejudice to renewal of the motion to amend the complaint upon proper papers as indicated hereinbelow. This action was commenced on February 23, 1972. A note of issue and statement of readiness were filed on January 30, 1973. On January 11, 1974 the case was removed from the ready calendar, presumably to allow for the appointment of new counsel. Thereafter, new counsel made the motions now under review. We reverse the first application on the ground that rule 675.7 of the rules of this court provides that no pretrial examination or other preliminary proceedings may be had after any action "has been placed on the Trial Calendar, except as permitted pursuant to certain other of such rules not here relevant, or unless unusual and .unanticipated conditions develop. We find no showing of such conditions. The determination herein is without prejudice to renewal of the motion .to amend the complaint upon papers that include an affidavit of merits by plaintiff showing facts to warrant the increase and a physician’s affidavit (Battaglia v. Elliott Development Gorp., 34 A D (2d 980). Hopkins, Acting P. J., Martuscello, Latham, Brennan and Benjamin, JJ., concur.