34 A.D.2d 980 | N.Y. App. Div. | 1970
In a negligence action to recover damages for personal injuries, defendants appeal from an order of the 'Supreme Court, Kings County, dated October 17, 1969, which (1) granted plaintiff’s oral motion at Trial Term to amend the complaint so as to increase the ad damnum of the complaint from $150,000 to $1,000,000, (2) directed a further physical examination and an examination before trial of plaintiff and (3) adjourned the trial of the action. Order reversed, with $10 costs and disbursements, and motion denied, without prejudice to renewal of the motion as hereinafter indicated, if plaintiff be so advised. The record does not adequately explain plaintiff’s inordinate delay and failure to move at Special Term from 1965 to 1969 and on proper papers. On an application of this nature the moving papers should include an affidavit by the plaintiff showing the merits of the case, the reason explaining or excusing the delay in making the motion and facts showing that the increase is warranted. A physician’s affidavit should also be submitted, demonstrating with some degree of specificity the nature of the plaintiff’s injuries and a causal connection between those injuries and the accident which is the basis of the action (Koi v. P.S. & M. Catering Corp., 15 A D 2d 775; Ferrari v. Paramount Plumbing & Heating Co., 20 A D 2d 878; see, also, Handschu v. Weltz, 13 A D 2d 679; Petrella v. Gruber, 19 A D 2d 794; Doyle v. Killeen, 28 A D 2d 969). However, in view of the apparent seriousness of plaintiff’s injuries and in the interests of justice, we believe plaintiff should be afforded an opportunity to renew his application upon proper papers, if he so desires. Christ, P. J., Rabin, Hopkins, Brennan and Benjamin, J'J., concur.
