Star Industrial Service Co. v. Wooster

84 A.D.2d 833, 444 N.Y.S.2d 185, 1981 N.Y. App. Div. LEXIS 16066

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 30, 1981
• Status: Published

Opinion

Appeal by defendant from stated portions of an order of the Supreme Court, Kings County (Scholnick, J.), entered November 24, 1980, which, inter alia, (1) granted plaintiffs leave to amend the ad damnum clause of their complaint by adding thereto the following: “granting plaintiffs exemplary damages including legal and counsel fees in the sum of at least $10,000 and costs”, and (2) directed plaintiffs to serve a further bill of particulars only as to Item No. 1 of defendant’s demand. Order modified by (1) deleting therefrom the phrase “including legal and counsel fees in the sum of at least $10,000 and costs” and (2) adding thereto a provision that plaintiffs shall provide a further bill of particulars with regard to Item Nos. 2 and 3 of defendant’s demand. As so modified, order affirmed insofar as appealed from, without costs or disbursements. Plaintiffs shall serve the further bill of particulars within 20 days after service upon them of a copy of the order to be made hereon, with notice of entry. It was proper to permit plaintiffs to amend their ad damnum clause to include a claim for exemplary damages (cf. Walker v Sheldon, 10 NY2d 401, 405; Knibbs v Wagner, 14 AD2d 987), but, as exemplary damages or otherwise, attorneys’ fees are not available in this case, there being no statutory authority providing for them (cf. City of Buffalo v Clement Co., 28 NY2d 241, 262-263; Doe v Roe, 93 Misc 2d 201, 216). In addition, plaintiffs’ bill of particulars is not responsive to Item Nos. 2 and 3 of defendant’s demand, and they should furnish a further bill as to those items. Lazer, J. P., Rabin, Gulotta and Cohalan, JJ., concur.