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DANIEL J. GAETA v. SALVATORE RIZZO (05/19/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


May 19, 1969

DANIEL J. GAETA, RESPONDENT,
v.
SALVATORE RIZZO, APPELLANT

In a negligence action to recover damages for personal injuries, defendant appeals from so much of an order of the Supreme Court, Queens County, dated May 2, 1968, as granted plaintiff's motion to increase the ad damnumclause of the complaint from $50,000 to $250,000 and to serve a further and supplemental bill of particulars.

Christ, Acting P. J., Brennan, Rabin, Benjamin and Martuscello, JJ., concur.

In our opinion, plaintiff's proposed and further bill of particulars is insufficient to the extent that it indicates that he is claiming all of the injuries contained in various hospital records and physicians' reports attached thereto; defendant is entitled to know, over plaintiff's verification, precisely what plaintiff will claim at the trial (D'Onofrio v. Davis, 14 A.D.2d 960; CPLR 3043, subd. [a], par. [6]).

Disposition

 Order modified, on the law and the facts, by adding (1) to the second decretal paragraph, as a further condition to the granting of the motion, the following: "that the plaintiff specify in his further and supplemental bill of particulars all injuries sustained as a result of the accident and a description of those claimed to be permanent"; and (2) to the fourth decretal paragraph a provision that plaintiff shall serve an additional bill of particulars specifying all said injuries and such description. As so modified, order affirmed insofar as appealed from, without costs. The additional bill of particulars shall be served within 20 days after entry of the order hereon.

19690519

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