Page v. Blue Star Aviation Corp. , 15 Misc. 2d 437 ( 1958 )

Jacob Markowitz, J.

Defendant moves, pursuant to rule 102 of the Rules of Civil Practice for an order requiring that the plaintiff make the complaint more definite and certain by setting forth the place where the accident occurred. It is charged by the complaint that the plaintiff was injured in an airplane crash as a result of false oral representations by the defendants to the plaintiff that the plane was in perfect condition when it was known by the defendants not to be fit for the intended flight and not to be in perfect condition. It is further alleged that the cause of the crash was due to the negligence of the defendants for failure to use due care in the inspection and servicing of the plane and in failing to provide a plane which could be flown safely.

Defendant argues that the place of the accident is a material fact of the cause of action or defense and must, therefore, be furnished by the complaint and not by way of a bill of particulars, particularly where the purpose is to intelligently plead with respect to the statutory time limitation.

The plaintiff contends that the defendant is not seeking to ascertain where the plaintiff’s cause of action arose but is attempting by this motion to change the concept of plaintiff’s theory of recovery. On the basis of the complaint, the plaintiff seeks recovery upon false or negligently spoken representations concerning the fitness of the plane and its inspection and servicing. Therefore, plaintiff argues the geographical location wherein the airplane crashed is not determinative of where the cause of action arose. The crash is not pleaded as a tort, but is instead the result of the falsity of the representations. Nor is the unfitness of the plane pleaded as a tort. However, what defendant actually seeks is a statement of the place where the cause of action arose. It is unnecessary at this time to determine upon what theory plaintiff may recover. Under that part of the notice which requests other and different relief, the motion is granted requiring the plaintiff to serve an amended complaint within 20 days from service of this order which will allege the place where the words were spoken and where the crash occurred.