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CATHERINE MANISCALCO ET AL. v. JOHN COLEMAN (05/26/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


May 26, 1969

CATHERINE MANISCALCO ET AL., RESPONDENTS,
v.
JOHN COLEMAN, APPELLANT

Appeal by defendant from an order of the Supreme Court, Richmond County, dated December 3, 1968, which granted plaintiffs' motion to increase the ad damnumclauses of their complaint and for leave to serve a supplemental bill of particulars.

Beldock, P. J., Brennan, Benjamin, Munder and Martuscello, JJ., concur.

In this personal injury negligence action, Special Term improvidently permitted plaintiffs to serve a supplemental bill of particulars and increase the ad damnum clauses of their complaint. Plaintiffs' papers were defective in that no medical affidavit was submitted (Ferrari v. Paramount Plumbing & Heating Co., 20 A.D.2d 878). Even if this court were to consider the medical report which was submitted on its merits, it does not show a necessary relationship between the injuries incurred by the injured plaintiff and the subsequent development of a breast cancer condition (Sikora v. Apex Beverage Corp., 282 App. Div. 193; Dennison v. Wing, 279 App. Div. 494). Thus, plaintiffs have failed to show a causal relationship between the accident and the newly alleged injuries. In addition, plaintiffs are guilty of laches. The instant motion was made some 20 months after the discovery and diagnosis of the cancerous condition. No excuse whatsoever has been offered for the delay (Koi v. P. S. & M. Catering Corp., 15 A.D.2d 775).

Disposition

Order reversed, on the law and the facts, with $10 costs and disbursements, and motion denied.

19690526

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