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SPAMPINATO v. M. BREGER & CO.

July 9, 1958

Thomas O. SPAMPINATO and Jane B. Spampinato, Plaintiffs,
v.
M. BREGER & CO., Inc., Miles Breger, Dr. Guenther E. Winkler, Dr. Solomon Adelman, Dr. Max Weissman, Dr. Richard Perrault, the City of New York, Defendants



The opinion of the court was delivered by: BYERS

This is a plaintiff's motion for leave to file an amended complaint, and is therefore to be viewed with tolerance. However, as stated in E. I. DuPont De Nemours & Co. v. United States Camo Corp., D.C., 19 F.R.D. 495, there is a measure of discretion in connection with such an application which the court is required to exercise.

The plaintiff Thomas O. Spampinato, who appears in person, has a grievance which he has been diligent to exploit.

 The proposed pleading contains seven alleged causes of action which are set forth in 94 paragraphs; thus the very bulk of the pleadings, as proposed, challenges scrutiny.

 Stated in lowest terms, the present grievance of the plaintiff has to do

 (a) with statements said to have been made by the defendant Miles Breger in the course of earlier litigation in the Municipal Court of the City of New York which resulted in the plaintiff's eviction for non-payment of rent. That matter came ultimately to the attention of the Court of Appeals for the Second Circuit, where the decision was adverse to the plaintiff (Spampinato v. M. Breger & Co., 226 F.2d 742);

 (b) with, as the plaintiff alleges, the violation of his civil rights in connection with his having been committed to the Kings County Hospital for observation as a person whose mind was disturbed. That committal was set aside by action of the Supreme Court of the State and in consequence the plaintiff believes that he has a cause of action against four physicians and the City of New York; as to the latter, it was the activity of the Welfare Department which brought about his being committed for examination as above stated.

 The disposition of the motion is as follows:

 The amended complaint will be allowed to be filed upon condition that the first 34 paragraphs be withdrawn, since they have to do only with the landlord and tenant relationship which has been the subject of final adjudication; therefore it is not appropriate for reconsideration in this case.

 When the foregoing has been accomplished, the complaint will then be addressed to the subject-matter above explained, and it is to be anticipated that the pleading will then be subject to further motions in order to clarify and simplify the issues, as the defendants may be advised.

 Seemingly the plaintiff also seeks to compel the defendants to verify their answers. That will not be necessary in view of the provisions of Rule 11 of the Federal Rules of Civil Procedure, 28 U.S.C.A.

 Seemingly also, the plaintiff desires a pretrial conference, and it may be appropriate for such to be held, but not until all motions directed to the amended pleadings shall have been disposed of.

 Settle order.

 On Motions to Dismiss and to Reargue

 Four motions in this protracted case were before the court on October 30, 1958, when they were taken on submission, after brief argument by plaintiff, ...


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