Opinion
January 26, 1971
Order, Supreme Court, Bronx County, entered July 20, 1970, granting plaintiffs' application to serve an amended complaint increasing the ad damnum clause, modified, on the law and in the exercise of discretion, to the extent of precluding the second cause of action for nuisance, and otherwise affirmed, without costs and without disbursements. Leave is given the defendant to conduct a further physical and neurological or psychiatric examination of infant plaintiff, if so advised, and plaintiffs may serve a supplemental bill of particulars consonant with the complaint, as amended. The second cause of action and so much of the third cause of action as incorporates paragraph "Eleventh" of the second cause of action, as found in the amended complaint, i.e., for nuisance, is disallowed; there being no predicate for the adding of a new and different cause of action, this branch of the motion should have been denied. However, the ad damnum request may appropriately be granted in this instance; properly regarded, it merely informs the defendants of the maximum amount of the claim asserted. ( Natale v. Great Atlantic Pacific Tea Co., 8 A.D.2d 781.) And, in the instant case, in effect it was directed by the presiding Judge of the Civil Court, followed by a substitution of attorneys. This appears from the unrefuted attestation of plaintiffs' attorney and the statement of facts as proffered by the defendants-appellants. We find no prejudice occurring to the defendants, as they were put on notice during the depositions of the plaintiffs, January 4, 1968, that the eyesight of the boy would be involved; thus, the issue of laches is eliminated. There are supporting affidavits by the mother, and by the boy's attorney, together with evidentiary statements of the boy under oath (see Powell v. Becker Truck Renting Corp., 20 A.D.2d 573), adequately demonstrating the action has merit, involving as it does a fall, the cause of which on this record is not seriously disputed. A further affidavit by the infant plaintiff would have added nothing. ( Teplitsky v. Kamensky, 9 A.D.2d 671.) The medical affidavit is by a physician who is a specialist in psychiatry and neurology. Although, perhaps not perfect in form, "For the purposes of the motion the medical affidavit of plaintiff's doctor was adequate * * *. Upon this record it cannot be said that Special Term abused its discretion in granting the motion". ( Teplitsky v. Kamensky, supra, citing Natale v. Great Atlantic Pacific Tea Co., supra.)
I dissent in part and vote to reverse and deny the plaintiffs-respondents' motion in its entirety. The plaintiffs have failed to meet the burden imposed on them in order to prevail. They do not present a proper affidavit of merits, a reasonable excuse for their laches, or a sufficient medical affidavit. The affidavit of merits is insufficient. Plaintiffs have failed to submit satisfactory proof of: (1) the merits of the case, (2) the reasons for the laches, and (3) the fact that the increase is warranted by reason of facts which have recently come to the plaintiffs' attention, thus excusing the failure or negligence necessitating the amendment so far as these facts are within the knowledge of the plaintiffs. The medical affidavit is insufficient in that it fails to show with specificity the nature of the infant plaintiff's injuries, their prospective consequences, resulting disabilities and the causal relationship between such disabilities and the injuries sustained. (See generally on this subject Jimenez v. Seickel Sons, 22 A.D.2d 643; Ferrari v. Paramount Plumbing Heating Co., 20 A.D.2d 878; Matter of Capicotti v. Capicotti, 20 A.D.2d 717; Garcia v. Sentry-Norden Oil Heating Co., 18 A.D.2d 789; Koi v. P.S. M. Catering Corp., 15 A.D.2d 775; Hencken v. Edelman, 15 A.D.2d 744; Cox v. New York Tel. Co:, 10 A.D.2d 565; Matter of Goldstein v. Fass, 7 A.D.2d 638; Constantinides v. Manhattan Tr. Co., 264 App. Div. 147; Frehe v. Schildwachter, 263 App. Div. 379.) Further, the record fails wholly to support the statement made in the majority memorandum "in effect, it was directed by the presiding Judge of the Civil Court" (with reference to the increase in the ad damnum clause). A hearsay statement by an associate of the new attorneys who had just come into the case states the Civil Judge remanded the case to the calendar clerk pending an application to the Supreme Court for removal. Accordingly, I would deny the application in its entirety.