Opinion
January 25, 1971
In a negligence action to recover damages for personal injuries, defendant Arista Truck Renting Corp. appeals from an order of the Supreme Court, Queens County, dated November 6, 1969, which granted plaintiff's motion for leave to serve a supplemental and amended bill of particulars and permitted appellant to conduct a further physical examination of plaintiff. Order modified by adding thereto a provision permitting defendant Arista Truck Renting Corp. to conduct a further examination before trial of plaintiff on the claim of plaintiff's sexual impotence, upon 10 days' written notice, provided that such notice shall be served upon plaintiff's attorney within 30 days after entry of the order hereon. As so modified, order affirmed, without costs. Plaintiff was injured on August 12, 1966 and shortly thereafter told his orthopedist that he had "no desire for sex", but there was no medical diagnosis of sexual impotency until plaintiff's second hospitalization, in August, 1968. In our opinion, under all the circumstances, it was proper to permit plaintiff to serve the supplemental and amended bill of particulars, but appellant should have been permitted to conduct a further examination before trial on the new claim if it should so elect ( Pensavalle v. Vivona, 25 A.D.2d 447; Duffy v. Banks, 15 A.D.2d 663). Rabin, P.J., Shapiro, Christ and Benjamin, JJ., concur.