Vitiello v. Consolidated Edison Co. of New York, Inc.

51 A.D.2d 523, 379 N.Y.S.2d 403, 1976 N.Y. App. Div. LEXIS 10725

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 22, 1976
• Status: Published

Opinion

Order, Supreme Court, Bronx County, entered August 15, 1975, denying leave to amend the ad damnum clause of the complaint and leave to serve a further bill of particulars, unanimously modified in the exercise of discretion to permit service of the proposed further bill of particulars on condition that plaintiff Louise Marencik make herself available for physical and mental examinations by defendants’ physicians; and otherwise affirmed, without costs and without disbursements. There is no showing of facts warranting the increase in the ad damnum clause; the information now in said plaintiff’s possession is essentially the same as the information in plaintiff’s possession when the complaint was served. The motion to increase the ad damnum was made over three years later and after a jury had been selected. In the meantime, defendant Consolidated Edison has perhaps been prejudiced because, relying upon a limited indemnification agreement from the defendant Casa, it has not had a physical or mental examination of plaintiff Louise Marencik and obviously now cannot have one fairly soon after the commencement of the action. With respect to the proposed further bill of particulars, however, it appears to us that there is no real element of surprise involved; in essence the further bill is merely an elaboration of the earlier bill of particulars; but defendants should have physical and mental examinations of said plaintiff. Settle order on notice. Concur—Murphy, J. P., Lupiano, Silverman, Capozzoli and Nunez, JJ.