Cepeda v. Hertz Corp.
| Decision Date | 21 June 1988 |
| Citation | 529 N.Y.S.2d 760,141 A.D.2d 394 |
| Parties | Juan CEPEDA, Plaintiff-Appellant, v. HERTZ CORP., Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
S. Weinraub, New York City, for plaintiff-appellant.
P. Hoffer, New York City, for defendant-respondent.
Before SULLIVAN, J.P., and ROSS, ELLERIN and SMITH, JJ.
Order, Supreme Court, New York County (William P. McCooe, J.), entered December 17, 1987, which denied plaintiff's motion for leave to amend and supplement his bill of particulars, is unanimously reversed, on the law, on the facts, and, in the exercise of discretion, and, the motion is granted, without costs.
On May 1, 1981, Mr. Juan Cepeda (Mr. Cepeda), who was eighteen years old, was struck by a vehicle, owned by the Hertz Corporation (Hertz), as he was walking across the intersection at 6th Avenue and 23rd Street, in New York County. This accident resulted in Mr. Cepeda suffering multiple fractures of the right leg and ankle, and, related complications.
Thereafter, Mr. Cepeda (plaintiff) commenced action against Hertz (defendant) to recover damages for his injuries. In May 1984, a jury returned a verdict in plaintiff's favor in the amount of $5,000,000.00. Subsequently, the Trial Court (Frank S. Rossetti, J.) granted defendant's motion to set aside that verdict, and, ordered a new trial, unless the plaintiff stipulated to accept the reduced sum of $750,000.00. Following the plaintiff stipulation, a judgment was entered, on July 16, 1984, in the amount of $750,000.00, and, from that judgment, defendant appealed, and plaintiff cross-appealed. In connection with this earlier appeal ( Cepeda v. Hertz Corporation, 112 A.D.2d 91, 491 N.Y.S.2d 647 (1st Dept.1985)), this Court, by order, entered July 18, 1985, reversed the judgment, mentioned supra, and, remanded for a new trial, solely on the issue of damages, unless plaintiff stipulated to reduce the judgment in his favor to $450,000.00.
Prior to filing a note of issue for the new trial on damages, in 1987, plaintiff moved for leave to amend and supplement his bill of particulars, in order to update his injuries related to the 1981 accident. In pertinent part, in that pleading, plaintiff stated (see, Record on Appeal (RA), at page 23):
Accompanying this pleading was a physician's affirmation in support, as well as authorization to inspect plaintiff's hospital records, and an offer to make plaintiff available for a psychiatric examination by defendant's expert (see, RA at pages 19-29). Defendant opposed. Subsequently, the IAS Court denied the motion for leave.
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