Ferrari v. Paramount Plumbing & Heating Co.

• Decision Date: 21 April 1964
• Citation: 248 N.Y.S.2d 515,20 A.D.2d 878
• Parties: Giuseppi FERRARI, Plaintiff-Respondent, v. PARAMOUNT PLUMBING & HEATING CO., Inc., and Psaty & Fuhrman, Inc., Defendants-Appellants. PSATY & FUHRMAN, INC., Third-Party Plaintiff, v. INDUSTRIAL ENGINEERING CO., Inc., Third-Party Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 515

248 N.Y.S.2d 515

20 A.D.2d 878

Giuseppi FERRARI, Plaintiff-Respondent, v. PARAMOUNT PLUMBING & HEATING CO., Inc., and Psaty & Fuhrman, Inc., Defendants-Appellants.

PSATY & FUHRMAN, INC., Third-Party Plaintiff, v. INDUSTRIAL ENGINEERING CO., Inc., Third-Party Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

April 21, 1964.

H. N. Kalow, New York City, for plaintiff-respondent.

P. Hoffer, New York City, for defendants-appellants and third-party defendant-appellant.

Before BREITEL, J. P., and McNALLY, EAGER, STEUER and STALEY, JJ.

PER CURIAM.

Order, entered on November 27, 1963, granting the plaintiff's motion to amend his complaint by increasing the ad damnum clause from $100,000.00 to $500,000.00 and to amend the bill of particulars, reversed, on the law, on the facts and in the exercise of discretion, with $20 costs and disbursements to appellants, and the motion denied, without prejudice, however, to a renewal of the motion, if plaintiff be so advised, upon condition that plaintiff pay the costs of the action to date and upon any other conditions, if any, Special Term may see fit to impose upon such renewal. To permit the substantial increase of the ad damnum clause sought on this motion requires the submission of a physician's affidavit which demonstrates with some degree of specificity the nature of the plaintiff's injuries, their prospective consequences, the resulting disabilities and the causal relationship between such disabilities and the original injuries sustained. The medical affidavit here submitted is fatally deficient in these respects. In addition, it is necessary on an application of this nature that there be submitted an affidavit of merits 'showing the merits of the case, the reasons for the delay and the fact that the increase is warranted by reason of facts which have recently come to the attention of the plaintiff and excusing the failure or negligence necessitating the amendment so far as these facts are within the knowledge of the plaintiff' (Koi v. P. S. & M. Catering Corp., 15 A.D.2d 775, 224 N.Y.S.2d 774). No such affidavit has been submitted. While the instant application is deficient in the above respects, we deem it advisable, however, in the light of the apparent serious and progressive nature of the plaintiff's injuries, the prior notice of intention to seek an amendment of the ad damnum clause and in the overall interest of justice, to afford the plaintiff an opportunity to renew...