Silverman v. Scharf

74 A.D.2d 822, 425 N.Y.S.2d 352, 1980 N.Y. App. Div. LEXIS 10567

Opinion

In an action for dental malpractice, plaintiffs appeal from so much of an order of the Supreme Court, Queens County, dated July 5, 1979, as denied their motion to strike the second affirmative defense in defendants’ answer. Order reversed insofar as appealed from, on the law, with $50 costs and disbursements, and plaintiffs’ motion to strike the second affirmative defense granted. The default notice required by CPLR 305 (subd [b]) to accompany a summons served without a complaint does not limit the amount which may be demanded in the complaint once the defendant appears in the action (Everitt v Everitt, 4 NY2d 13). Therefore, Special Term erred in holding that the complaint, served after defendants’ appearance, could demand no greater monetary damages than the sum stated in the original summons with notice. Hopkins, J. P., Lazer, Margett and Weinstein, JJ., concur.