Brennan v. City of New York

• Decision Date: 19 January 1984
• Citation: 470 N.Y.S.2d 621,99 A.D.2d 445
• Parties: Mary BRENNAN, etc., Plaintiff-Appellant, v. The CITY OF NEW YORK, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 621

470 N.Y.S.2d 621

99 A.D.2d 445

Mary BRENNAN, etc., Plaintiff-Appellant, v. The CITY OF NEW YORK, Defendant-Respondent.

Supreme Court, Appellate Division,

First Department.

Jan. 19, 1984.

N. Forman, Brooklyn, for plaintiff-appellant.

M. Gage, Brooklyn, for defendant-respondent.

Before ROSS, J.P., and CARRO, ASCH, MILONAS and KASSAL, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, Bronx County, entered October 28, 1982, denying the plaintiff's motion for leave to increase the ad damnum clause of the complaint and for a transfer of the action from Civil Court to Supreme Court, affirmed, without prejudice to a new application on submission of proper papers, including an affidavit of merits and a physician's affidavit, without costs or disbursements.

Upon review of the record, we find the moving papers palpably insufficient to sustain the requested increase of the ad damnum clause from $25,000 to $250,000 and for a transfer of the action to Supreme Court from the Civil Court, to which the case had previously been transferred pursuant to CPLR 325(d). Two prior applications for the same relief were denied, with leave to renew upon correcting the deficiency in plaintiff's submission; the first was improperly brought in the Civil Court, the second was not supported by a recent physical examination of the infant plaintiff.

We find the papers submitted on renewal of that motion likewise deficient. Upon such an application, an affidavit of merits is necessary (Koi v. P.S. & M. Catering Corp., 15 A.D.2d 775, 224 N.Y.S.2d 774; Ferrari v. Paramount Plumbing & Heating Co., 20 A.D.2d 878, 248 N.Y.S.2d 515). The motion should also be supported by a physician's affidavit pertaining to a recent physical examination of the plaintiff, specifying the change or deterioration of plaintiff's condition, the injuries which had not been considered previously or the extent to which plaintiff's condition has been aggravated and containing an opinion as to their prospective consequences and prognosis, the resulting disability in terms of permanency and the causal relationship with the original injury and accident (see Germinario v. Seatrain Lines, Inc., 81 A.D.2d 540, 438 N.Y.S.2d 103; Goldfarb v. 65 East 11th Street Corp., 40 A.D.2d 657, 336 N.Y.S.2d 464). The unsworn letter from plaintiff's doctor, offered by plaintiff in support of the renewal application, was insufficient for that purpose.

Contrary to the claim by appellant, there is nothing in the prior order, denying her second motion for leave to amend, authorizing the submission of a medical report in lieu of a physician's affidavit. We disagree with the view of our dissenting colleagues who would excuse plaintiff's failure to adhere to established procedure upon such application. Leave to amend may not be granted upon mere request, without appropriate substantiation. There must be compliance with the required procedure to permit the court to pass upon the merits of the leave for amendment (East Asiatic Co. v. Corash, 34 A.D.2d 432, 312 N.Y.S.2d 311).

Nevertheless, under the circumstances and consistent with the policy of liberal amendments, we are in agreement that plaintiff should be afforded a further opportunity to renew the application, supported by an affidavit of merits and a physician's affidavit setting forth the requisite information. In addition, since plaintiff claims an undervaluation of the original ad damnum, sufficient factual and medical support should be furnished to afford the court an opportunity to render an informed determination that the original amount demanded is now insufficient and that a re-evaluation is necessary.

While Loomis v. Civetta Corinno Construction Corp., 54 N.Y.2d 18, 444 N.Y.S.2d 571, 429 N.E.2d 90 has facilitated amendments to the ad damnum clause of a complaint, where there is no resulting prejudice to the defendant the established procedure to be followed is unaltered and the same submissions are required upon such application. Miranda v. City of New York, 81 A.D.2d 792, 439 N.Y.S.2d 129 relied upon by the dissent, does not require reversal here since, in that case, the motion was appropriately supported by an affidavit of merits and a physician's affidavit.

All concur except ASCH and MILONAS, JJ., who dissent in a memorandum by MILONAS, J. as follows:

MILONAS, Justice (dissenting).

The instant action concerns a claim for damages arising out of personal injuries allegedly sustained by the infant plaintiff on October 14, 1978 when, while playing with her two young sisters, she slipped and struck her head on a cement bench, necessitating her hospitalization for six or seven days. It is plaintiff's contention that defendant City of New York was negligent in the construction and maintenance of the playground area in question, located at Hutchinson River Parkway and Wilkinson Avenue in the Bronx.

On or about January 4, 1980, plaintiff served a notice of claim and amended certified complaint, reciting the circumstances surrounding plaintiff's injuries and seeking $25,000 in the ad damnum clause. According to the complaint, plaintiff "suffered great injuries to and about her head and internal ear and has suffered great pain and agony and verily believes that she will continue to suffer for a long time to come and permanently." Her verified bill of particulars, dated March 28, 1980, explained that she had "suffered severe...