Opinion
January 15, 1962
In a negligence action to recover damages for personal injuries, medical expenses and loss of services, the plaintiffs appeal from an order of the Supreme Court, Nassau County, entered June 27, 1961, which denied their motion for leave to serve a supplemental complaint and an amended and supplemental bill of particulars. Order reversed, without costs, and motion granted on the condition that, if defendant Banks shall so elect within 10 days after entry of the order hereon, the infant plaintiff shall submit to a physical examination and an examination before trial. If such election be made, the examinations shall be held and the proposed supplemental complaint and bill of particulars shall be served within 15 days after entry of the order hereon or on any other date mutually agreed upon. In the event that the infant plaintiff is not made available for such examinations after said election shall have been made, the order is affirmed, without costs. The principal purpose of the application was to set forth additional injuries received by the infant plaintiff, and the damages resulting therefrom, following the accident which was alleged in the complaint. In the original accident, which involved the collision of two motor vehicles, the infant plaintiff sustained injuries which included a fracture of the right leg. Some months later, while at home, she refractured that leg, allegedly because of her weakened condition resulting from the first accident. The motion apparently was not opposed by defendants Star Bus Lines, Inc., and Williams. In our opinion, under all the circumstances, the exercise of a sound discretion and the interests of justice require that plaintiffs be allowed to serve the proposed supplemental complaint and bill of particulars upon the conditions stated (cf. Poplar v. Bourjois, Inc., 298 N.Y. 62, 67; Wagner v. Mittendorf, 232 N.Y. 481; Matter of Dickerson v. Essex County, 2 A.D.2d 516, 519-520; Brewster v. Brewster Co., 138 App. Div. 139, 140). Beldock, P.J., Ughetta, Kleinfeld, Christ and Brennan, JJ., concur.