Opinion
May 22, 1987
Appeal from the Supreme Court, Erie County, Gossel, J.
Present — Denman, J.P., Boomer, Pine, Lawton and Davis, JJ.
Order insofar as appealed from unanimously modified, on the law, and as modified, affirmed, without costs, in accordance with the following memorandum: In this medical malpractice action, defendant Cunanan appeals from that part of an order at Special Term which denied his motion to strike certain allegations from plaintiff's bill of particulars on the ground that plaintiff may not recover for her sterility because the damages are too speculative to be compensable. The court properly denied the motion to strike the allegations of plaintiff's sterility because the admissibility of proof of damages is for the trial court to decide, not Special Term (see, Nordhauser v. New York City Health Hosps. Corp., 102 A.D.2d 818; Ivey v. New York Tel. Co., 279 App. Div. 972, 973). It was error, however, for Special Term to recast plaintiff's bill of particulars. It is not the court's function "to reframe demands and undertake successive prunings until an acceptable product shall emerge" (Naglak v. Dairy Treat Corp., 22 A.D.2d 716). That portion of the order which sought to modify paragraph 16 is therefore stricken and the original paragraph reinstated.