Opinion
2012-10-24
In the Matter of Janet SEALY, appellant, v. Kieran C. MORRIS, et al., respondents.
Mallilo & Grossman, Flushing, N.Y. (Francesco Pomara, Jr., of counsel), for appellant. Robert P. Tusa (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum], of counsel), for respondents.
Mallilo & Grossman, Flushing, N.Y. (Francesco Pomara, Jr., of counsel), for appellant. Robert P. Tusa (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum], of counsel), for respondents.
MARK C. DILLON, J.P., L. PRISCILLA HALL, SHERI S. ROMAN, and JEFFREY A. COHEN, JJ.
In a proceeding pursuant to CPLR 325 to remove an action to recover damages for personal injuries entitled Sealy v. Morris, pending in the Civil Court, Queens County, under Index No. 0140867/04, to the Supreme Court, Queens County, and for leave to amend the complaint to increase the ad damnum clause, the petitioner appeals from an order of the Supreme Court, Queens County (Rosengarten, J.), entered September 2, 2011, which denied the petition.
ORDERED that the order is affirmed, with costs.
The Supreme Court providently exercised its discretion in denying the petition to remove the petitioner's underlying personal injury action from the Civil Court, Queens County, to the Supreme Court, Queens County ( seeCPLR 325[b] ), and for leave to amend the complaint to increase the ad damnum clause ( seeCPLR 3025[b] ). To demonstrate her entitlement to this relief, the petitioner was required, inter alia, to submit a physician's affirmation (1) showing a causal connection between her condition and the accident, and (2) specifying the claimed change in her condition, any injuries that had not been previously considered, or the extent to which the condition had worsened ( see Cohen v. Kim, 23 A.D.3d 602, 805 N.Y.S.2d 97;Joefield v. New York City Tr. Auth., 11 A.D.3d 586, 782 N.Y.S.2d 676;Dolan v. Garden City Union Free School Dist., 113 A.D.2d 781, 785, 493 N.Y.S.2d 217;London v. Moore, 32 A.D.2d 543, 299 N.Y.S.2d 761). The physician's affirmation submitted by the petitioner in support of her petition failed, inter alia, to establish that the increased injuries to her lower back which required surgery were causally related to the subject motor vehicle accident, as it failed to account for the fact that the petitioner had claimed to have injured her lower back in accidents that had occurred both prior and subsequent to the subject motor vehicle accident ( see Bell v. Margolis, 82 A.D.2d 817, 441 N.Y.S.2d 424;Northern Ins. Co. of N.Y. v. Kregsman, 26 A.D.2d 648, 272 N.Y.S.2d 427).