De Veaux v. Wide World Photos, Inc. , 20 A.D.2d 787 ( 1964 )

— Order, entered on November 21, 1963, granting plaintiff’s motion, in this personal injury negligence action, for leave to serve an amended bill of particulars and to increase the ad damnum, in the complaint unanimously modified, on the law, the facts, and in the exercise of discretion, to condition the granting of such motion on payment by plaintiff of the costs of the action to date, including the costs of the both appeals, together with the sum of $250, within 30 days after service of the order entered herein with notice of entry, and the order is otherwise affirmed. However the facts in this seven-year-old action are regarded, the prosecution of the action has been inordinately delayed and the assembly of evidence to establish the causation of the various conditions from which plaintiff suffers has not been expeditious. On the other hand, the affidavit proof shows sufficient merit, prima facie, to warrant a trial as to the issue, the only issue involved on this appeal, of proximate cause of the conditions from which plaintiff suffers. Settle order on notice. Order, entered on December 16, 1963, granting plaintiff’s motion for reconsideration of a preference unanimously modified, on the law, the facts, and in the exercise of discretion, to the extent of placing the action on the Reserve Calendar for January 18, 1965, and the order is otherwise affirmed, with $20 costs and disbursements to appellant. In view of the belated amendment of the bill of particulars and the increase in the ad damnum clause in the complaint defendant is entitled to the additional period for preparation of its defense. Settle order on notice. Concur — Breitel, J. P., Yalente, Eager, Steuer and Bastow, JJ.