Witmer v. Smith

Appellate Division of the Supreme Court of New York

Witmer v. Smith

193 A.D.2d 1080, 598 N.Y.S.2d 628

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 28, 1993

StatusPublished

Cited by2 cases

This text of 193 A.D.2d 1080 (Witmer v. Smith) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Witmer v. Smith, 193 A.D.2d 1080, 598 N.Y.S.2d 628 (N.Y. Ct. App. 1993).

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Opinion

Order unanimously re[1081]*1081versed on the law without costs and motion granted. Memorandum: On a prior appeal plaintiffs argued that the jury’s award of damages was inadequate with respect to the amount awarded for pain and suffering and loss of enjoyment of life and that the jury failed to make any award for property damage, diminished future earning capacity, and future medical expenses. We granted a new trial only with respect to property damage, pain and suffering and loss of enjoyment of life (Witmer v Smith, 179 AD2d 1026). The court therefore erred on retrial in denying defendant’s motion to preclude plaintiffs from presenting proof with respect to any and all allegations set forth in plaintiffs’ supplemental bill of particulars dated January 20, 1992 (see generally, 10 Carmody-Wait 2d, NY Prac § 70:484). (Appeal from Order of Supreme Court, Erie County, Gorski, J.—Preclusion Order.) Present—Denman, P. J., Pine, Balio, Boomer and Davis, JJ. [As amended by order entered Oct. 1, 1993.]

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Order unanimously re[1081]*1081versed on the law without costs and motion granted. Memorandum: On a prior appeal plaintiffs argued that the jury’s award of damages was inadequate with respect to the amount awarded for pain and suffering and loss of enjoyment of life and that the jury failed to make any award for property damage, diminished future earning capacity, and future medical expenses. We granted a new trial only with respect to property damage, pain and suffering and loss of enjoyment of life (Witmer v Smith, 179 AD2d 1026). The court therefore erred on retrial in denying defendant’s motion to preclude plaintiffs from presenting proof with respect to any and all allegations set forth in plaintiffs’ supplemental bill of particulars dated January 20, 1992 (see generally, 10 Carmody-Wait 2d, NY Prac § 70:484). (Appeal from Order of Supreme Court, Erie County, Gorski, J.—Preclusion Order.) Present—Denman, P. J., Pine, Balio, Boomer and Davis, JJ. [As amended by order entered Oct. 1, 1993.]

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193 A.D.2d 1080, 598 N.Y.S.2d 628, Counsel Stack Legal Research, https://law.counselstack.com/opinion/witmer-v-smith-nyappdiv-1993.

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