Veneski v. Clark Transfer Inc.

55 A.D.2d 603, 389 N.Y.S.2d 627, 1976 N.Y. App. Div. LEXIS 15313

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 6, 1976
• Status: Published

Opinion

In a negligence action to recover damages for personal injuries, etc., defendants appeal from an order of the Supreme Court, Kings County, dated June 25, 1976, which granted plaintiffs’ motion (1) for leave to serve an amended bill of particulars and (2) to increase the ad damnum clause of their complaint. Order modified by (1) deleting (a) so much of the first decretal paragraph thereof as granted the branch of plaintiffs’ motion which was for leave to increase the ad damnum clause of their complaint and (b) the third, fourth and fifth decretal paragraphs thereof and (2) substituting therefor a provision that the said branch of plaintiffs’ motion is denied. As so modified, order affirmed, without costs or disbursements. Insofar as the motion seeks leave to increase the ad damnum clause, plaintiffs’ papers are defective since they fail to contain a medical affidavit (see Battaglia v Elliott Dev. Corp., 34 AD2d 980; Maniscalco v Coleman, 32 AD2d 671; Ferrari v Paramount Plumbing & Heating Co., 20 AD2d 878). Plaintiffs should be permitted to amend their bill of particulars. The proposed amendments serve to update the continuing expenses of plaintiff Joseph Veneski’s treatment for the injuries which he sustained and for the additional losses of earnings he allegedly incurred (see Liggieri v Pasternack, 51 AD2d 731; Portilla v Boyke, 51 AD2d 539). Margett, Acting P. J., Rabin, Hawkins and Mollen, JJ., concur.