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JOHN MARSHALL ET AL. v. ZIMMERLY'S EXPRESS ET AL. (09/30/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


- decided: September 30, 1968.

JOHN MARSHALL ET AL., PLAINTIFFS, AND SONYA MILTON ET AL., APPELLANTS,
v.
ZIMMERLY'S EXPRESS ET AL., RESPONDENTS, ET AL., DEFENDANTS.

Appeal by plaintiffs Sonya Milton and Murray Milton from an order of the Supreme Court, Rockland County, dated February 10, 1968, which denied their motion for leave to amend their bill of particulars so as to include as special damages the medical expenses incurred since the service of their original bill of particulars. Order reversed, on the facts, with a single bill of $20 costs and disbursements against respondents appearing separately in the action, and motion granted. Appellant Sonya Milton allegedly was injured in an accident which occurred in 1961. Her principal injury, as set forth in appellants' bill of particulars apparently served in 1964, was the aggravation of a pre-existing psychological illness; and the medical expenses resulting therefrom were alleged to be $3,850. The bill of particulars also stated that appellants reserved the right to prove additional medical expenses since Mrs. Milton was still under her physician's care because of the alleged aggravation of her illness and such expenses were continuing to accrue. The instant motion was made for leave to amend the bill of particulars so as to show that medical bills had increased to $18,000. It was supported by an affidavit of Mrs. Milton's physician stating in substance that, in his opinion, said appellant's continued illness directly resulted from the accident. The motion was denied on the ground of failure to show the causal relationship between the additional medical services and the accident. In our view, appellants' motion should have been granted. Defendants were advised by the original bill of particulars that appellants claimed that the medical expenses were continuing to accrue; there was no claim of other or different injuries; there was no request to increase the ad damnum clause; and, under the circumstances presented, appellants should be permitted to amend the bill of particulars so that their entire claim may be before the court. Beldock, P.J., Christ, Brennan, Munder and Martuscello, JJ., concur.

19680930

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