Birkholz v. Wilgus , 27 Misc. 2d 582 ( 1961 )

Mario Pittoni, J.

The plaintiffs -seek to remove to this court an action pending in the Nassau County District Court on the ground that the damages sustained are greater than originally alleged, and that the District Court is not empowered to award a judgment for such increased amount. The application is made more than three years after the cause of action arose. A supporting medical affidavit states that the applicant, Grace Birkholz, was operated on for advanced glaucoma of the left eye, which was traumatic in origin; and in the opinion of the physician, was the result of the automobile accident of April 9, 1957. The physician first examined Mrs. Birkholz on January 20, 1959. The medical and hospital expenses total approximately $1,200.

The defendant points out that Mrs. Birkholz was examined on behalf of the defendant on August 26, 1957, by Dr. G-ugliuzza. No claim of traumatic glaucoma was made at that time, and Dr. Gugliuzza found the eyes to be normal. On May 21, 1958, Mrs. Birkholz was re-examined by the same physician, and again there was no complaint of traumatic glaucoma.

When a plaintiff, after discovery that damages are apparently in excess of the jurisdiction of the court below, makes seasonable application for removal, the relief is not precluded because more than three years have elapsed since the cause of action accrued (Toolis v. Naotasi, 240 App. Div. 849). In the present case no prejudice is asserted by the defendant because of the delay.

This court, moreover, cannot, as requested by the defendant, condition a grant of the requested relief on the determination of a court appointed physician as to the causal relation between the claimed injury and the accident. That is a matter for the trier of the facts. The medical affidavit submitted by the applicant is sufficient to support the motion. The defendant, however, should be allowed a further physical examination.

The motion is granted on condition that the plaintiff, Grace Birkholz, submit to a further physical examination by the defendant within 10 days after entry of the order herein. In the event the parties cannot agree on the selection of a physician, the order submitted shall provide, in the alternative, for the examination by a court appointed physician within the same period, and the expenses thereof shall be borne wholly by the plaintiffs. In either case, a copy of the medical report shall be furnished to the plaintiffs.

The plaintiffs’ motion for permission to serve an amended complaint is also granted. The amended complaint shall be served within 10 days after the examination.